HONG KONG HUIAN NATIVES ASSOCIATION LTD v. LOK TAI CHUEN AND ANOTHER

HCA452/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 452 OF 2008

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(By Counterclaim)

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D E C I S I O N

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1. I dismiss the application with costs to the defendants.

2. The application was premised on what the plaintiff by counterclaim said is true.  All these allegations are issues to be tried.  The court cannot, at this stage, stand on the allegations of the plaintiff.  There are serious issues to be tried, and the 11^th board of directors may be validly and lawfully constituted or not legally and validly constituted.  This is an issue to be tried.  I cannot grant an injunction on the ground that the 11^th board of directors was unlawful or the resolution to bring them into office was invalid.

3. The application, as admitted by counsel for the 1^st defendant, was made at the 11^th hour.  It has always been clear to the applicant (the plaintiff by counterclaim) that after two years, their term of office would expire and the AGM would have to be held.  In fact, the 1^st defendant’s solicitors have warned the other side, by a letter on 16 November 2009, that should they bring an application for injunction they should make it expeditiously. 

4. But then the summons was issued on the 11^th houron 15 December, with a long affidavit served.  This makes this whole situation very difficult for the other side, who have managed to put in an affidavit in reply.  In fact, this letter of 16 November 2009 was not even exhibited, and I am afraid that this is bordering on material non-disclosure.  The application has the effect of bringing the Association to a standstill situation.  I do not find the plaintiff would benefit at all by such an injunction. 

5. In fact, as pointed out by Mr Kwong for the 1^st defendant by counterclaim, the plaintiff by counterclaim will not suffer any loss or damage in the event this application for interlocutory injunction is refused.  He has no personal interest in the outcome of the injunction he sought, and the counterclaim hearing is not a derivative action.  On the contrary, if the injunction is granted, the Association would suffer serious and irreparable loss and damage.

6. For these reasons I dismiss the application, with costs to all the defendants in the counterclaim.