CHEUNG TING KAU, VINCENT v. HIGHFIT DEVELOPMENT CO LTD

HCA 1700/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1700 OF 2002

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AND

HCA 1942/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1942 OF 2002

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BETWEEN

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AND

HCA 1700/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1700 OF 2006

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BETWEEN

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REASONS   FOR   JUDGMENT

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1.  The Defendant in the 3 related actions (“Highfit”) is appealing against 3 orders of Master Kwang:

(1)     HCA 1700/2002

         The order of security for costs on Highfit’s Counterclaim;

(2)     HCA 1942/2002

         The order for specific discovery;

(3)     HCA 1700/2006

         The order for further and better particulars of the Defence.

2.  At the hearing, I dismissed the appeals.  Here are my reasons.

Background

3.  The Plaintiff is the executor of the late Mr. Lim Por Yen, a well known entrepreneur and industrialist, and founder of the Lai Sun group of companies.  Mr. Lim died in 2005.

4.  Highfit is a Hong Kong company, and the developer of a property project in Shanghai.  Highfit used to hold all the interest in the share capital a PRC company Shanghai Huifa Property Co Ltd (“Huifa”) which held the land and the building of the project.  On 8 September 2000, Highfit transferred its entire shareholding in Huifa to a BVI company Highfit Holdings Ltd (“HHL”) (2^nd Defendant in HCA 1700/2006).

5.  Between 1994 and 2001, Mr. Lim, Madam Koo, Mr. Lim’s commonly called “third wife”, and Ms. Pearl Ling were directors of Highfit.

6.  It is common ground that the project was financed by:

(1)     the aggregate sums of HK$573 million provided by Mr. Lim;

(2)     an overdraft to Highfit by the Hang Seng Bank personally guaranteed by Mr. Lim.

7. Mr. Lim contended the HK$573 million were loans repayable with interest on demand, whereas Highfit and Madam Koo contended that they were gifts to her for the purpose of acquiring the property.  Mr. Lim contended that the transfer to HHL was made without his knowledge with intent to defraud the creditors of Highfit, whereas Highfit and Madam Koo contended that Mr. Lim was fully aware of the arrangement.

8.                HCA 1700/2002 was commenced by Hang Seng Bank against Highfit for recovery of the overdraft.  Highfit served Third Party Notice on Mr. Lim for indemnity of any obligation to the Bank alleging the facility was a gift to Madam Koo and Mr. Lim would be responsible for its repayment.

9.  In February 2003, the Bank obtained summary judgment against Highfit.  Mr. Lim paid off the Bank and obtained an assignment on notice of the rights in the loan together with the judgment, and sought to enforce as plaintiff the summary judgment against Highfit.  The Third Party Notice was ordered to proceed as a Counterclaim against Mr. Lim.  By consent, the appeal against the summary judgment to the Court of Appeal was dismissed upon Mr. Lim’s undertaking not to enforce the judgment debt pending the determination of the Counterclaim.

10.  In May 2003, Mr. Lim commenced HCA 1942/2002 against Highfit and Madam Koo for repayment of, inter alia, the HK$573 million.  They filed similar Defences of gifts.

11.  In 2005, the Executor obtained a carry-on order in respect of HCA 1700/2002 and HCA 1942/2002.

12.  In 2006, the Executor issued HCA 1700/2006 against Highfit and HHL seeking to set aside the transfer of shares in Huifa to HHL as conveyance with intent to defraud creditors.

Security for costs

13.  The application for security for costs is pursuant to:

(1)     s. 357 of the Companies Ordinance (Cap. 32) that there is reason to believe Highfit will be unable to pay the costs of the Executor if successful in his defence; or

(2)     alternatively, under O.23, r.1(1)(b), RHC that Highfit is a nominal plaintiff (by counterclaim) and there is reason to believe that he will be unable to pay the costs of the Executor if ordered to do so.

14.  Ms. Lok, for Highfit, submitted that:

(1)     Highfit is not an attacker, but defender, in pursuing the Counterclaim;

(2)     Highfit is not a nominal plaintiff.

There is no argument on the likely impecuniosity of Highfit.  

15.  In Brand Farrar Buxbaum Llp v Samuel-Rozenbaum Diamond Ltd & Anor [2003] 1 HKLRD 600, security for costs was sought under s.357 of the Companies Ordinance against a corporate third party intervener in interpleader proceedings as if it were the “plaintiff”.  Ma J (as the CJHC then was) held in the context of interpleader proceedings, that one must look at substance and not form and decide who essentially was the “attacker” or the plaintiff (pp. 605I to 607E). 

16.  Ms. Lok submitted that Highfit is not an attacker, but only a defender as it was compelled to litigate by the Executor.

17.  She submitted that a principal debtor who has a money claim against the guarantor may set it off against the guarantor’s right to indemnification (see Halsbury’s Laws of Hong Kong Vol. 13(2) 2003 Reissue [200.107]).

18.  She submitted that in the present case, Mr. Lim, the assignee of the judgment debt, was also the guarantor of the original debt.  Hence, Mr. Lim was also enforcing the guarantor’s right of indemnification against the principal debtor.  As such, Highfit is entitled to put up the defence of set-off on Mr. Lim’s promise to indemnify it as a gift to Madam Koo.  Hence, the Counterclaim is no more than a defence of set-off.

19.  Ms. Lok also submitted that Highfit is not a nominal party since it will reap substantial benefit in defending the debt claim, as otherwise it will have to pay up.  There is no evidence that madam Koo is funding Highfit.

20.  Mr. Lam SC, for the Executor, submitted that the Plaintiff is merely enforcing the judgment debt as assignee, and there is no need to raise any indemnity as guarantor.  The Plaintiff could have been anyone obtaining an assignment from the bank.

21.  He referred to O.15, r.2, RHC:

“(1)   Subject to rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence.

(2)     Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.

(3)     A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.

(4)     …”

and submitted that judgment has been given in the main action (r.2(3)), and the Counterclaim is being litigated as a separate action (r.2(2)).  The trial, and hence, any costs to be incurred, is only concerned with the allegation of gift and indemnification of Madam Koo, and that is what the security is about.  Those allegations are extraneous to the judgment already obtained.

22.  Mr. Lam referred to Chung J’s decision dated 13 June 2005 in HCA 1700/2000 where His Lordship dismissed Highfit’s appeal against the Registrar’s refusal to stay execution of the summary judgment (at the instance of the Bank) pending determination of the third party proceedings.  At that stage the appeal against the summary judgment was on foot.  The defence against the Bank was estoppel in that the Bank and Highfit shared the common intention that only Mr. Lim would be responsible for repayment.  By then, Mr. Lim has become the assignee of the loan.  It was submitted that Highfit was entitled to raise a cross-claim and/or set-off the loan against the cross-claim against Mr. Lim.  Chung J said at para. 29:

“In any event, [Highfit] is at best only left with a cross-claim, without any valid basis for establishing a set-off.  There is also no sufficient connection between the bank’s claim and [Highfit’s] cross-claim: Esso Petroleum v Milton [1997] 1 WLR 938.  The summary judgment was founded on a loan between the bank and [Highfit].  It has been held that the bank has no knowledge of the alleged agreement between [Highfit], Koo and Lim.  [Highfit] has no equitable claim (or indeed any other claim) against the bank (or the loan),  There is nothing for the defendant to “impeach the title” of the bank’s claim.  Accordingly, there is no basis for the claim to be extinguished by the cross-claim.”

23.  I agree that the Executor is only enforcing the judgment debt qua assignee as it is unnecessary to rely on any indemnification of the guarantor by the principal debtor.

24.  Looking at it from another angle, a plaintiff by counterclaim is prima facie liable to pay security for costs if s. 357 is engaged.  If security were ordered and unpaid, the Counterclaim would be stayed and there is nothing else to litigate, and the stay of execution of the summary judgment would be lifted.  Hence, Highfit is the attacker in what remains to be tried.

25.  Mr. Lam submitted that Highfit is a nominal plaintiff.  Madam Koo’s deposed that she treated the funds as her own without reference to Highfit or its directors.  Hence, Highfit has no beneficial interest.  I agree.

26.  Hence, the appeal against security for costs was dismissed.

Discovery

27.  HCA 1942/2002 relates to the claim of advances of over HK$1 billion including HK$500 million on the project by Mr. Lim.

28.  The Master ordered specific discovery for the following categories of documents:

(1)     management accounts of Highfit from 1994 to 2001;

(2)    account vouchers and ledgers from 1994 to 2001 relating to advances made by Mr. Lim;

(3)     correspondence between Highfit and Mr. Lim and/or Lai Sun group showing sources of funding for the property project;

(4)     correspondence between Highfit and Messrs. Wee, Ramayah & Partners (“Singaporean lawyers”) relating to the draft loan agreement between Mr. Lim and Highfit in 1998.

29.  There was an earlier application of specific discovery by Mr. Lim in 2003 where Reyes J ordered only the discovery of audited accounts from 1994 to 2001, but disallowed the financial statements, and also the correspondence, documents and internal memoranda and notes relating to advances made by Mr. Lim from 1994 to 2001. 

30.  Ms. Lok objected to the discovery ordered:

(1)     the present exercise is broader in terms of depth and width, and covers documents disallowed in 2003;

(2)     it is oppressive in covering a 14 years period, too voluminous, and there is delay.

31.  The guiding principles relating to discovery under O.24, r.7, RHC are set out in the Hong Kong Civil Procedure 2008 Vol. 1 para. 24/7/1:

“… (1) There is no jurisdiction to make an order under RSC, O24, r.7 for the production of documents unless (a) there is sufficient evidence that the documents exist which the other party has not disclosed; (b) the document or documents relate to matters in issue in the action; (c) there is sufficient evidence that the document is in the possession, custody or power of the other party.  (2) When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure…”

32.  Ms. Lok referred to s. 121(3A) of the Companies Ordinance whereby a company is required to keep its book of accounts for 7 years.  Highfit has already deposed that it only had the audited accounts for 1994 and 1995 in relation to the 2003 discovery.

33.  Mr. Lam submitted that the present application was necessary because Highfit had only produced audited accounts for 1994 and 1995, with 1996 to 2001 lacking.  The refusal of the source documents on the premises that audited accounts were sufficient would no longer hold.  In the absence of audited accounts, management accounts as supported by the vouchers and ledgers should be produced. 

34.  Mr. Lam submitted that the duty to make discovery relates to documents the party has or at some time had in his possession (see O.24, r.7, RHC).  If the party had, but no longer has the documents, it has to give discovery in the proper form and to state what has become of the documents.

35.  HCA 1942/2002 commenced in 2002.  The relevant 7 years period should be 1995.  The documents sought are expected to be in existence in the ordinary course of business.  Highfit was carrying on business and the documents and accounts had to be kept anyway.  If, otherwise, it is incumbent on it to explain why they were destroyed, especially when litigation has commenced within the 7-year period.

36.  The Executors took office and obtained the carrying on order in 2005.  The original summons was taken out in May 2007, and adjourned sine die by consent for reasons best known to the parties.  Hence, there is no undue delay.

37.  The scope of the discovery sought is not general but specific relating to the documents on the funding of the project.  Hence, it is not too voluminous and oppressive.

38.  I agree that Mr. Lam has made out a cogent case for specific discovery, and it just seems that Highfit is making every effort to avoid disclosure of relevant documents.  The present exercise picked up from what was left off from the previous one.  The draft loan agreement was produced with a cover letter, and the other documents for its preparation are also relevant.  Although the Lai Sun group is not a party, its relationship with Mr. Lim dictates that correspondence in the corporate name but relevant to the matters in issue should also be disclosed.

39.  Hence, the appeal on specific discovery was dismissed. 

F&B particulars

40.  HCA 1700/2006 relates to the allegation that the transfer of shares in Huifa by Highfit to HHL was conveyance with intent to defraud creditors.

41.  The Defence alleged that the funds were not loans but gifts by Mr. Lim to Madam Koo (para. 2).  The agreement to transfer the Huifa shares by Highfit to HHL was made with the knowledge of Mr. Lim (para. 3).  Madam Koo was the largest creditor of Highfit and other than Madam Koo there were no other creditors of any significance (para. 5).  The restructuring in relation to the Huifa shares was undertaken with Mr. Lim’s knowledge for the primary purpose of facilitating or assisting raising external financing for the project (para. 5).  Mr. Lim acknowledged prior to his death that he had settled and resolved all outstanding matters between himself, Madam Koo and Ms. Ling as is evidenced by various press reports and comments attributed to Mr. Lim (including a radio interview) in or about April 2004 (para. 9).

42.  The requests allowed by the Master are:

(1)     Requests 2 & 4

         All facts and matters relied on in support of the allegation that Mr. Lim had knowledge of the agreement of transfer and the alleged restructuring of the Huifa shares;

(2)     Request 3

         Full particulars of the debts allegedly owed by Highfit to Madam Koo and its proportion of the overall indebtedness of Huifa;

(3)     Request 5

(a)    State whether there was a settlement covering the matters in the proceedings, and if so, the usual details;

(b)   Date, time, name and channel of the radio interview.

43.  The functions of properly particularized pleadings are:

(1)     to inform the other side of the nature of the case it has to meet and to avoid surprise at trial;

(2)     to enable the other side to properly prepare its evidence for trial;

(3)     to limit the generality of the pleadings;

(4)     to limit and define the issues (as to which discovery is required); and

(5)     to tie the hands of the party so that it cannot go into matters not relevant to those issue.

(See Hong Kong Civil Procedure 2008, para. 18/12/1 citing Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd [1994] 2 HKC 264, 269E-270E.)

44.  Under O.18, r.12(4), RHC:

“(4)   Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party-

(a)          where he alleges knowledge, particulars of the facts on which he relies, and

(b)         where he alleges notice, particulars of the notice.”

45.  Ms. Lok submitted that:

(1)     Requests 2 & 4

         Particulars of knowledge can properly be given in discovery and witness statement;

(2)     Request 3

         Highfit’s indebtedness to Madam Koo was only pleaded as background and is not relevant to the issue of whether Mr. Lim was a creditor of Highfit;

(3)     Requests 5

         The request is in reality interrogatories and matters of evidence should await discovery.

46.  Mr. Lam submitted that:

(1)     Requests 2 & 4

         It is not an answer to say that particulars can be given in witness statements, as part of the function of particulars is to enable the other side to prepare its evidence for trial and to limit the generality of pleadings.

(2)     Request 3

         Whether Mr. Lim or Madam Koo is the largest creditor of Highfit is relevant to Madam Koo’s intent to defraud the creditors of Highfit;

(3)     Request 5

         The issue of any alleged settlement and its announcement on radio is clearly relevant and particulars must be given.

47.  The evidence to be led should be limited by the pleadings but not vice versa.  Of course, the details of the facts to be pleaded is a matter of degree, but pleadings which are too general may be embarrassing for the other party to deal with in preparation for trial.  The requests here are reasonable and conducive to limiting the issues to be decided.  The state of  indebtedness of Highfit to Madam Koo is relevant to the intent to defraud creditors and not merely background.  Otherwise, it would not have been pleaded.  It will also be relevant to see whether the alleged indebtedness towards Madam Koo was predicated upon the allegation that the funds were gifts as opposed to loans.

48.  Hence, the appeal against the ordering of further and better particulars was dismissed.

Costs

49.  I ordered that Highfit do pay costs of the appeal to the Plaintiff, to be taxed if not agreed.

50.  Lastly, I thank Ms. Fok and Mr. Lam for their helpful submissions.