LI PING CHUN AND ANOTHER v. LIANG TONGHUA

HCA 745/2011 and
HCA 2239/2017
(Heard Together)
[2018] HKCFI 2757

HCA 745/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 745 OF 2011
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ACTION NO 2239 OF 2017
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(Heard Together)

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DECISION

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1.  The plaintiffs are the administratrice of the estate of Leung Foo Su (or Leung Foo She), the deceased (“the Deceased”).  The 1^st plaintiff (“Li”) was the surviving widow of the Deceased while the 2^nd plaintiff is a closing family friend.  The defendants in these actions are the sisters of the Deceased, namely Liang Tonghua (“TH”), Leung Hong Wah (“HW”) and Leung Koon Wah (“KW”).  The plaintiffs have obtained interim injunctive relief effectively ex parte against the defendants.  This is the substantive argument of the plaintiffs’ applications for the continuation of the interim orders and asset disclosure order against the defendants.

2.  TH resisted the application, and filed her affirmation in opposition.  Albeit acting in person, TH lodged before the hearing her written submissions in both English and Chinese, which bear all the resemblance to those prepared by legal professional.  She appeared in person. HW and KW were absent.

Background

3.  Back in 2011, the plaintiffs, as administratrice of the estate of the Deceased, commenced HCA 745/2011 to claim against TH for breach of trust by misappropriating the money in the joint bank accounts of the Deceased and TH that belonged to the Deceased beneficially.  Both sides to the dispute were then legally represented.  HW and KW sided with TH, and gave evidence for her at the trial.

4.  After trial, DHCJ S T Poon handed down the judgment in HCA 745/2011 (“the Judgment”) on 6 October 2016.  Whilst the learned deputy judge expressed reservation about reliance on Li’s evidence alone,he accepted the corroborative evidence of her witnesses including the 2^nd plaintiff herein.  He found TH was not an honest witness and rejected her evidence, while the evidence of her witnesses, including HW and KW, were of no assistance.  He found that the money in the joint bank accounts belonged to the Deceased beneficially and TH had no beneficial interest in it.  It was only that TH was unwilling to share with Li the assets of the Leung family, including such money, and TH transferred the money from the joint bank accounts to herself without the authority of the Deceased.

5.  Accordingly, DHCJ Poon gave judgment in favour of the plaintiffs, and ordered for an account by TH as well as payment to the plaintiffs of what would be found due from TH to the Deceased’s estate upon the taking of such account.

6.  The relevant facts in HCA 745/2011 as found were set out in the Judgment[1], which I shall repeat no further for the present purpose.  The background of that action was also set out in detail in the Court of Appeal judgment in CACV 220/2016 dated 19 October 2017 [2] mentioned below.

7.  Subsequent to the Judgment, the plaintiffs, through their solicitors, had in October and November 2016 demanded TH in writing for the account in compliance with the Judgment but to no avail.  Meanwhile, TH lodged an appeal against the Judgment.  She also sought to stay the execution of the Judgment pending appeal, but failed.

8.  On 31 March 2017, DHCJ S T Poon further ordered TH to make interim payment to the plaintiffs in the sums of HK$920,000 and US$76,000 within 14 days, together with costs forthwith in the sum of HK$25,000 (“the Interim Order”).  By the same order, DHCJ Poon gave further directions in respect of the taking of the account pursuant to the Judgment.

9.  Despite repeated written demands, TH defaulted in complying with the Interim Order and the further directions in respect of the taking of the account pursuant to the Judgment.

10.  On 21 April 2017, the plaintiffs applied ex parte for a charging order against two properties which were then registered in the sole name of TH, namely (and collectively, “the Properties”):

 (1) 2^ndFloor, No 169 Yee Kuk Street, Kowloon (“the Yee Kuk Street Property”); and

 (2) 3^rd Floor, No 10 Shim Luen Street, Kowloon (“the Shim Luen Street Property”).

11.  TH’s appeal against the Judgment was heard in May 2017.  On 19 October 2017, the Court of Appeal handed down its judgment.  The appeal was dismissed with costs.

12.  On 19 June 2017, the plaintiffs obtained a charging order nisi in respect of the Properties (“the Charging Order”).  They sought to register the Charging Order on 18 July 2017, but only to be informed by the Lands Registry on 19 September 2017 that TH had actually assigned the Yee Kuk Street Property and the Shim Luen Street Property to HW and KW respectively.  Both assignments were dated 5 June 2017, ie, prior to the application for the Charging Order.  The assignments were registered on 21 June 2017.  Both were assignments for nil consideration.  The registration of the Charging Order has since been withheld by the Land Registry.

13.  In view of that, on 26 September 2017, the plaintiffs commenced HCA 2239/2017 asserting a proprietary claim in respect of the Properties.  The three sisters were named the defendants.  The plaintiffs claim that the assignments were made with intent to defraud creditors, namely, to evade the plaintiffs’ enforcement of the Judgment and the Interim Order against TH, and therefore are voidable pursuant to section 60 of the Conveyancing and Property Ordinance, Cap 219 (“CPO”).  On this basis, they seek to set aside the assignments and claim declaratory relief, including that the Charging Order has validly attached to the Properties on 19 June 2017.

14.  On the same day, the plaintiffs took out an application for a post-judgment Mareva injunction in HCA 745/2011 and an asset preservation order in equivalent terms in HCA 2239/2017. The Mareva injunction against HW and KW as non-parties in HCA 745/2011 was sought under what is known as the Chabra jurisdiction of the court [3].  The plaintiffs also applied for ancillary asset disclosure order against the defendants.

15.  The plaintiffs’ applications came before Hon Ng J on 6 October 2017.  The defendants were absent, and the hearing proceeded effectively ex parte. On the same basis, Ng J granted the orders, except the ancillary disclosure order, and fixed the return day on 3 November 2017.

16.  The plaintiffs then took out their summonses dated 13 October 2017 for the continuation of the injunctive orders in both actions.  They also applied for asset disclosure orders, which were not given ex parte on 6 October 2017.  On 3 November 2017, DHCJ Yee adjourned the applications for substantive argument, and ordered the injunctive orders to continue in the interim.

The injunctive relief

17.  It is trite that the court has jurisdiction to grant an asset preservation order, upon being satisfied with the following criteria: see Samtani v Samtani[2012] 4 HKLRD 872 at §§75 – 79, 87:

 (1) The plaintiff demonstrates a serious issue to be tried in respect of his claim of proprietary right over the subject property.

 (2) Damages will not be an adequate remedy so that something ought to be done for the security of the property.

 (3) The balance of convenience is in favour of the granting of the order.  This will be when justice demands an order to preserve the subject property to prevent the eventual determination of the dispute from becoming abortive.

 (4) Unlike a Mareva injunction, there is no need for the plaintiff to show a risk of dissipation of assets [4].

18.  The principles governing the grant of a Mareva injunction are equally trite: see Hong Kong Civil Procedure 2018 at§29/1/65 – 70:

 (1) The plaintiff must have a good arguable case on a substantive claim.

 (2) The defendant has assets within the jurisdiction.

 (3) There is a real risk of dissipation or removal of assets, which would render the plaintiff’s judgment empty.

 (4) The balance of convenience is in favour of granting the injunction.

19.  The Court has power to grant a post-judgment Mareva injunction: see Hong Kong Civil Procedure 2018 (Vol 1) at §29/1/60; Orwell Steel (Erection and Fabrication) Ltd v Asphalt and Tarmac (UK) Ltd [1984] 1 WLR 1097 at 1100C–G.

20.  A Mareva injunction can be extended to a third party against whom or which the plaintiff does not assert any cause of action — the Chabra jurisdiction.  The principles were recently summarised by DHCJ Le Pichon in China Baoli Technologies Holdings Ltd v Orient Equal International Group Ltd & Ors HCA 1399/2016 (12 June 2017) at §70:

 (1) The applicable principles are those enunciated by Lloyd LJ in SCF Finance Co v Masri [1985] 1 WLR 876 (at 884B–E).  For those principles to apply, the court must be satisfied that there is good reason to suppose (to be equated with a good arguable case) that the assets in the hands of the non-party are in truth assets belonging to the defendant; or assets of which the defendant has control, or a right of access or some other right where the Mareva injunction is sought to restrain the disposal/removal of assets.

 (2) It is not necessary for the applicant to demonstrate, at the injunction stage, that the assets sought to be frozen belong to the defendant.  What has to be shown is good reason to suppose as against the non-party that the assets held by the non-party would be susceptible to a procedure which would lead to satisfaction of a judgment in the defendant’s favour.

 (3) It is not necessary for the plaintiff to have a cause of action against the non-party.

21.  Insofar as the asset preservation order is concerned, the plaintiffs in HCA 2239/2017 assert a proprietary claim in respect of TH’s beneficial interest in the Properties.  They base such claim on the Charging Order, which remained attached to the Properties if the claim against the defendants in respect of the assignments of the Properties under section 60 of the CPO succeeds.

22.  The plaintiffs applied for the Charging Order at the time when TH was the registered owner of the Properties.  The assignments could in no way be known until after their registration on 21 June 2017.  The plaintiffs had no way of discovering the assignments until they sought to have the Charging Order registered in July 2017.

23.  Section 60 of the CPO provides that:

“ (1) Subject to subsections (2) and (3), every disposition of property made, whether before or after the commencement of this section, with intent to defraud creditors, shall be voidable, at the instance of any person thereby prejudiced.

…

(3) This section does not extend to any estate or interest in property disposed of for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the disposition, notice of the intent to defraud creditors.”

24.  It is the burden of the plaintiffs to establish that the Properties were assigned to HW and KW with intent to defraud the plaintiffs, being the judgment creditor in HCA 745/2011.  Such intention may be actual or objectively a matter of inference: see for instance Tradepower (Holdings) Ltd v Tradepower (HK) Ltd(2009) 12 HKCFAR 417 at §88; Cheung Ying Lun v Legal Way Ltd[2014] 1 HKLRD 106 at §§23 – 25.

25.  The plaintiffs described the assignments of the Properties are suspicious in terms of their timing and terms.  I can see why.

26.  First, the assignments were on their face executed after the handing down of the Judgment, the making of the Interim Order and shortly after the hearing of TH’s appeal against the Judgment.

27.  Second, HW and KW provided no monetary consideration to TH for theassignments.  This was apparently explained by the fact that the assignmentswere executed in purported settlement of an action commenced back in 2007by KW against TH (HCA 138/2007).  The purported settlement was effected by a Tomlin order dated 29 May 2017 (“the Tomlin Order”).

28.  However, in HCA 138/2007, KW claimed as the executrix of the estate of the deceased mother of the sisters and the Deceased under the mother’s will dated January 1976.  According to the indorsement of claim, she claimed that pursuant to the alleged instructions of the mother and the declarations of trust signed by TH dated 31 August 1989 in respect of the Properties, the three sisters were the beneficial owners of the Shim Luen Street Property and the six siblings were the beneficial owners of the Yee Kuk Street Property, as tenants in common in equal shares.  KW claimed, amongst other things, for a declaration to that effect as well as an order compelling TH to vest the title, benefit and interests of and in the Properties into these alleged beneficial owners accordingly.

29.  Now by the Tomlin Order, the claim was somehow settled by TH agreeing to transfer “all her interest and benefits” of the Yee Kuk Street Property and the Shim Luen Street Property to HW and KW respectively. No mention was made about the beneficial interests of the other siblings (or if any of them are deceased, their respective estates) as set out in the claim.  Likewise, the assignments executed by TH as the assignor and HW and KWas the assignees of the two properties respectively likewise made no exception, reservation or even reference to the interests of the other siblings(or if any of them has deceased, their respective estates) as beneficial tenants in common as alleged in that action.  The assignments, on their face, were mere assignments of Properties to KW and HW personally and absolutely.

30.  It is readily apparent that the terms of the alleged settlement by the Tomlin Order and the subsequent assignments of the Properties went beyond the claim in HCA 138/2007.  They also went beyond what TH, HWand KW respectively were said to be entitled to beneficially in the Properties.

31.  Third, HCA 138/2007 had been dormant for 10 years. The parties therein, who are now on the same front in the action herein, somehowdecided to settle it in terms with the effect of stripping TH of any interest in the Properties at the time when TH was faced with an enforceable payment obligation upon account under the Judgment and the Interim Order.

32.  In answer to the above queries, TH alleged that the Properties, albeit registered in her name before the assignments, were merely held by her on trust for the mother, and this was evidenced by her declarations of trust dated 31 August 1989.  TH argued that the declarations of trust were amongst those documents included in the trial of HCA 745/2011, and the plaintiffs have never sought to deny them then.

33.  However, it should be noted that the alleged trust did not feature in the relevant factual dispute that needed to be resolved in HCA 745/2011.  As mentioned, the dispute concerned the beneficial interest in the money in the joint bank accounts of hers and the Deceased.  It followed that neither DHCJ Poon nor the Court of Appeal considered it necessary to make any finding in relation to such alleged trust in respect of the Properties.  They also did not do so, as a matter of fact.

34.  TH also explained that the dispute between her and her siblings, including KW, arose out of her earlier attempt to administer the estate of the mother.  This led to HCA 138/2007, but the same has since been left dormant for 10 years.  It was only after the commencement of legal proceedings by the plaintiffs in this action when KW resumed proceeding with HCA 138/2007 and demanded TH to transfer the Properties.  TH then agreed to do so with a view to facilitating KW’s administration of the mother’s estate, for which she allegedly held the Properties on trust.  It was her conscious decision to suppress the reference to the alleged administration of the mother’s estate and to assign the Properties to HW and KW apparently absolutely in order to save stamp duty.

35.  Nevertheless, the above assertion still could not explain the fact that KW, as executrix of the estate of the mother, indeed claimed against TH on the basis that TH had ⅓ beneficial interest in the Shim Luen Street Property and ⅙ beneficial interest in the Yee Kuk Street Property.  Nor could the above assertion explain the alleged settlement in terms exceeding what KW claimed or the subsequent assignments of the Properties to HW and KW absolutely.  Further, there is no dispute that the assignments were executed in the absence of passing of the title deeds to the Properties.  One wonders how the assignments would have facilitated the alleged administration of the mother’s estate.

36.  TH then argued that even on the basis of the plaintiffs’ case, merely showing that there is a serious question to be tried as to her ownership of the Properties is not enough, citing Standard Chartered Securities Ltd v Lai Arthur [1993] 1 HKC 375 at 390D–H in support.

37.  In the circumstances of this case, I do not agree.  The fact that TH was the registered owner of the Properties amounted to prima facie evidence of her ownership in the Properties.  Even taking into account the alleged declarations of trust, the claim by KW in HCA 138/2007 was put forward on the basis that TH still had beneficial interest in the Properties.  KW has not come out to explain or to corroborate the case of TH.  In view of the admittedly sensitive timing and the terms of the alleged settlement and assignments, whether the assignments are caught by section 60 of the CPO must be seriously arguable.  I do not agree that what the plaintiffs have put forward falls short of meeting the threshold of their applications.

38.  TH argued that in any event, the fact was that as at the time of the Charging Order, she in fact had no, as she has assigned away, interest in the Properties.  Therefore, the order in any event has not attached to the Properties unless and until the assignments are avoided.

39.  Similar argument has previously been discussed and dismissed by the court.  In Shui Yee Ltd v Rockwin Enterprises Ltd & OrsHCA 527/1995 (20 December 2000), Chu J (as she then was) said (at §12):

“ In opposing the appeal, Mr Lee for the 1^st defendant argues that section 60 of the Conveyancing and Property Ordinance only renders a disposition caught by it voidable but not void. Accordingly, the assignment by the 1^st defendant to Mr Hui remains valid until being set aside by an order of the court, which will only take effect as from the date of its pronouncement. Therefore, even if the plaintiff were to succeed in the s.60 Application, the beneficial interest remains with Mr Hui up to the date of the court order, so that the 1^st defendant would still have no beneficial interest on 22 September 2000 when the Charging Order nisi was made. I do not accept this argument. As Mr Chan for the plaintiff submits, the effect of section 60 is to provide that the disposition shall be a valid one unless and until its validity is being successfully challenged. The plaintiff now challenges the disposition by the 1^stdefendant to its director and if it succeeds in the challenge, then the disposition will be avoided. The result will be that the beneficial ownership had not passed tothe director by the assignment, so that it is subject to the Charging Order Nisi. If section 60 is to be read in the manner suggested by Mr Lee, then the very purpose of the section would be defeated in that the legitimate rights of the creditors can still be frustrated and defeated in the period before a fraudulent transaction is ordered to be set aside. That cannot be right.”

40.  It follows that if the transaction disposing of TH’s beneficial interest is set aside pursuant to section 60 of the CPO, the assignments will be deemed to have never occurred so that the interest will be considered as remaining with her all the time and has been subject to the Charging Order since 19 June 2017.

41.  Insofar as the application for an asset preservation order is concerned, I reject TH’s argument that the plaintiffs lack the necessary proprietary right over the Properties to found the claim and the interim relief sought.

42.  On the basis of the above discussion, I also find that the plaintiffs have a good arguable case against TH, a pre-requisite to the Mareva injunction.

43.  TH challenged the basis on which the court should extend the Mareva injunction under the Chabra jurisdiction to cover HW and KW.  In particular, she argued that there was no evidence that she has substantial control over the Properties now in the hands of KW and HW.

44.  I do not agree.  As HW and KW have not come forward to resist these applications, it is strictly not for TH to speak on their behalf.  In any event, the circumstances in which the Properties came into the hands of KW and HW discussed above must be relevant.  From what could be seen to have happened in this case so far, I find that contrary to her allegation, whether or not TH was actually behind the steer, including initiating the assignments, is to say the least seriously arguable.

Risk of dissipation

45.  Insofar as the asset preservation order in respect of the Properties is concerned, there is no need to show risk of dissipation.

46.  As regards the post-judgment Mareva injunction, again the circumstances surrounding TH’s assignment of the Properties to KW and HW mentioned above refer.  TH made clear that she assigned the Properties away without the title deeds.  If what she meant by facilitating the alleged administration of the Properties was to further dispose of the Properties with a view to distribution, then I accept that even on TH’s own case, it cannot be assumed that KW and HW would or could never seek to somehow further dispose of the Properties even without the title deeds.

47.  Again KW and HW have not appeared to put forward their respective case or to offer any undertaking in respect of the Properties now registered in their names.  TH has failed or refused to comply with the order for account under the Judgment or the further directions of the court.  At this stage, it is also unclear whether TH has other substantial assets in Hong Kong, apart from her interest in the Properties, that would serve to satisfy the Judgment and the Interim Order.

Balance of convenience

48.  Behind these applications, the plaintiffs basically complain thatthe enforcement of the Judgment, including that of the Interim Order by way of the Charging Order, is under threat of frustration by TH in collaboration with HW and KW.  Apart from the assertion made in her submissions, TH’strue state of assets is unknown.  Neither KW or HW has come forward and offered any undertaking as to the preservation of the properties.  These operate to tile the balance in favour of granting the orders.

49.  On the other hand, there is no real basis for suggesting that in the event that it is found later that the orders should not have been granted, damages would not suffice as an adequate remedy for any of TH, HW and KW.  The undertaking as to damages by the plaintiffs is good at least to the extent of the liability of TH under the Judgment and the Interim Order to the plaintiffs.  In view of their capacities of the plaintiffs and the nature of their claim, I do not accept the criticism by TH that the undertaking did not come from the plaintiffs in their personal capacities.

Delay

50.  TH raised the issue of delay on the part of the plaintiffs in taking out the applications.  In principle, delay itself does not prevent the court from considering the grant of an asset preservation order: see Zimmer Sweden at §76.  As to the Mareva injunction, the consideration of delay is fact sensitive, depending on the circumstances of each case: see Nicekind Holdings Ltd v Yim Wai NingCACV 435/2000 (26 March 2001) at §§45 – 48 per Leong CJHC; Lam Sik Ying v Lam Sik ShiHCA 4713/2001 (14 January 2011) at §12 per Recorder Benjamin Yu SC.  The mere fact of delay in bringing an application for a Mareva injunction or that the application was made inter partes does not, without more, negate a risk of dissipation, though delay without proper explanation is a relevant consideration when assessing whether there is a real risk of dissipation: see Hong Kong Civil Procedure at§29/1/70.

51.  As mentioned, it was not until 18 September 2017 when the plaintiffs were informed by the Land Registry could they possibly have come to know of TH’s assignments of the properties to KW and HW.  From that point onwards, the plaintiffs reacted by commencing HCA 2239/2017 in the same month and applying for the interim orders, which came to be heard in the first week of the following month.  I do not accept that there was any delay that was so inexplicable and substantial that would bar the plaintiffs’ entitlement to the interim remedies being sought.

Service

52.  Much was said by TH about service of the court documents by the plaintiffs on her (and KW and HW).  Amongst other complaints, TH criticised the plaintiffs’ service as attributing to her absence from the hearing before Hon Ng J on 6 October 2017.

53.  Considering the evidence in respect of service, I tend to share the scepticism of the plaintiffs about the readiness of TH to accept service.  I do not accept the criticism about the manner in which the plaintiffs’ solicitors have attempted to serve the documents in accordance with the defendants’ addresses last known to them.

54.  On 6 October 2017, Hon Ng J indeed entertained the applications, which were taken out on an inter partes basis, in the absence of the defendants.  However, his Lordship took the care to proceed on the basis that the applications before him were effectively ex parte.  Hence the fixing of a return date.  TH indeed appeared at the inter partes stage for the purpose of arguing whether the orders should be discharged or continued.  The complaint about prejudice resulting from the orders being made in her absence lacks substance in reality.

Material non-disclosure

55.  TH apparently did suggest that the orders ought to be discharged.  Until her affirmation filed on 21 December 2017, TH has raised and relied on the allegations and matters discussed above as grounds in opposition of the continuation of the injunctive orders.  It was when she lodged her written submissions did she seek to rely on those allegations and matters apparently as grounds of material non-disclosure.  If she is right, the orders obtained ex parte would be liable to be discharged.

56.  In this context, the law does not impose an obligation to disclose remotely relevant or not truly material matters, otherwise it will be open to counter abuse.  Non-disclosure is culpable only when the information goes to the ex parte judge’s weighing operation, ie, what must have affected the judge’s decision on the ex parte application.  See Secretary for Justice v Choy Bing Wing CACV 11/2004 (3 December 2004) at §48; Securities and Futures Commission v A HCMP 1407/2007 (29 November 2007); China Agri-Products Exchange Limited v Wang Xiu Qun & Anor HCA 1807/2011 (5 November 2013) at §§118 – 119.

57.  Mr Chung did not seek to argue that his clients were not under the duty of full and frank disclosure when the applications were heard before Hon Ng J on 6 October 2017.  But he did not agree that there was breach of such duty.

58.  The key fact that TH argued to have been withheld from Hon Ng J was the existence and the terms of the declarations of trust by her in respect of the Properties mentioned above.  I do not see how.  For the purpose of the applications, the plaintiffs had to draw the learned Judge’s attention to the claim in HCA 138/2007 as well as the purported settlement of it by the Tomlin Order.  The skeleton submissions before the court then indeed did that.

59.  More importantly, by virtue of what can be discerned from the claim and the Tomlin Order in HCA 138/2007, the relevance of the declarations of trust has been overridden by the apparent fact that the terms of the settlement of that action went beyond the claim on the basis of, amongst others, the declarations of trust.  The purported settlement resulted in HW and KW becoming beneficial owners of the Properties absolutely, contrary to what the declarations of trust suggested as pleaded in HCA 138/2007.

60.  I add that even assuming that the orders obtained ex parte by the plaintiffs are liable to be discharged for material non-disclosure, the circumstances are such that I would have considered this a proper case for the exercise of discretion to re-grant the orders inter partes.

61.  In the circumstances, there is proper basis for continuing the interim injunctive orders.  However, the scope of the orders against KW and HW needs to be varied.  KW and HW were named as defendants to the plaintiffs’ proprietary claim because they were at the receiving end of the assignments.  This was also the basis on which they were joined as the third parties subject to the Mareva injunction.  This is the sole basis, and no case is made out why they should be restrained from dealing with their assets other than the Properties.  Mr Chung in his submissions acknowledged that the scope of the orders against KW and HW might be narrowed down.

Asset disclosure order

62.  The Court has power to make such an ancillary disclosure order against the subject of the injunction in aid of the process of enforcement by identifying his or her assets: see Gee on Commercial Injunctions (6^th ed) at §1-004; Hong Kong Civil Procedure 2018 (Vol 1) at §29/1/74.  As mentioned, Ng J did not give the order ex parte, and the plaintiffs now apply for it by way of their summons filed on 13 October 2017.

63.  The amounts covered by the interim orders were HK$920,000 and US$76,000.  They roughly represent the amounts in the joint bank accounts of TH and the Deceased back in 2002 [5].  However, the exact amount that TH will have to pay to the Deceased’s estate is uncertain until the taking of the account.  As mentioned, TH has so far failed or refused to comply with the Judgment, the Interim Order and the further directions of the court in respect of the taking of an account pursuant to the Judgment.  Further, given the dispute as to the precise extent of TH’s interest in the Properties, as now raised by her, her assertion that the Charging Order per se suffices in securing the plaintiffs’ recoverable interest from her cannot just be accepted for the present purpose.  In the circumstances, there is justification for the grant of the asset disclosure order in respect of the assets of TH.

64.  The same however is not true in the case of KW and HW.  As mentioned, they were named as third parties in the Mareva injunction in HCA 745/2011 and as defendants in HCA 2239/2017 on the sole basis of their being the assignees of the Properties.  No other basis has been put forward for the plaintiffs’ claim or relief against them.  I am not prepared at least at this stage to grant the asset disclosure order against HW or KW.

Disposition

65.  I order that the Mareva injunction in HCA 745/2011 and the asset preservation order in HCA 2239/2017 shall continue until further order of the court, subject to the variation that TH shall be subject to the orders in its current terms whereas HW and KW shall be subject to the orders against the disposal or dealing with the Properties only.  I grant the asset disclosure order in terms as sought against TH but not KW or HW.

Costs

66.  I make a nisi order that the plaintiffs shall have the costs of this hearing against TH while the costs of the applications shall be in the cause.  The nisi order shall become absolute in the absence of application within 14 days to vary.