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HCA009659B/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 9659 OF 2000
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CELESTIAL (INTERNATIONAL) SECURITIES& INVESTMENT LIMITED |
Plaintiff
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AND
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WILLIAM HENRY WOO |
Defendant
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Coram: Deputy High Court Judge Lam in Chambers
Date of Hearing: 21 December 2001
Date of Ruling: 21 December 2001
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RULING
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1. As far as the points raised by Mr McKellar are concerned, they could be identified as follows,
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(a) |
beneficial ownership of the apartment in Para. 1(1) (ii)(a) - the Plaintiff said it is owned by the Defendant on the basis that he provided the purchase price and IDL merely holds it on trust for him. The intervenors said that it was beneficially owned by Stella Lam, the wife of the Defendant. The intervenors did not place any evidence before me as to how Stella Lam funded the purchase of the property. The property was purchased in April 2000 when Stella Lam was working as an assistant solicitor in the law firm of the Defendant. Mr McKellar also referred to the presumption of advancement in favour of Stella Lam as wife of the Defendant. By so submitting, he implicitly accepted that the purchase monies were paid by the Defendant; |
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(b) |
the property and assets of Messrs William H Woo & Co. the intervenors said that the firm has been transferred on or before 30 November 2001 to Stella Lam. Again no evidence is placed before me although I was told that notice was given to the Law Society on 30 November 2001 about the transfer. I do not know whether the transfer was made for good consideration. If there was a transfer, it was at a time close to the departure of the Defendant from Hong Kong on 26 November 2001. |
2. I do not think it is appropriate for the court to decide on those issues at this stage without any evidence from the intervenors. On the other hand, I am satisfied that there is some evidence which justified the continuation of the injunction in its present form until the issues are resolved at a later stage after proper evidence has been filed by the parties on the issues. I am satisfied that there is a good arguable case that the property is held on trust by IDL for the Defendant and that the same can be said regarding the property and assets of the law firm, viz. they are held on trust by the wife for the Defendant. In saying so, I am not pre-empting a determination of these issues after the court has considered the matter with the benefit of proper evidence and full submission by the parties. All I said is that I am satisfied that the injunction can be continued in the meantime.
3. I will further direct that for the purposes of dealing with these issues,
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the intervenors to file and serve their summons and affidavits/affirmations by 4 January 2002; |
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the Plaintiff to file and serve affidavit/affirmation by 18 January 2002; |
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the intervenors to file and serve affidavit/affirmation in reply by 25 January 2002; |
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the matter be heard before a judge in chambers on a date to be fixed (estimated length 1 day); |
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no further evidence to be filed on the issues without leave. |
4. Regarding the application for variation by the Defendant, I do not think it is right for me to exercise my discretion to grant a variation when the Defendant did not give any disclosure about his financial position, notwithstanding that there are directions given in the context of the application for oral examination and provision for disclosure in the injunction granted by Yeung J. I propose to adjourn the application for variation with regard to future legal expenses. In so deciding, I bear in mind also that the Defendant is a solicitor himself and he can certainly act by himself in the meantime. Further, the Notice of Appeal has been served and there would be sufficient time in between now and the actual hearing of the appeal for him to restore the application with proper evidence as to his means. It is right that the court should examine his disclosure in order to be satisfied that the proposed variation is not inconsistent with the underlying policy of the Mareva.
5. With regard to the pre-injunction costs, the Plaintiff has no objection to the release of the following sums to allow payment to lawyers provided that they should be paid by cheques and copies thereof be supplied to the Plaintiff's solicitor.
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$20,000 to Mr Ronny Wong S.C.; |
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$40.000 to Messrs Robertsons. |
I shall grant a variation accordingly.
6. The $40,000 is not the full amount asked for by Mr Hoy. But bearing in mind that this is an application by Defendant instead of by Messrs Robertsons as creditor of the Defendant as intervenor, and also taking into account of the submission of Mr Remedios as to the lack of full particulars on to the bill, and also the lack of disclosure by Defendant as to his means, I am not prepared to go further than that. Messrs Robertsons is of course entitled to make their own application and the court will have to deal with that when such application shall come before it.
7. Apart from the variation stated in Para. 5 above, I will also extend the time for the Defendant to comply with the disclosure order to 4 January 2002. Save as to that, I will continue the injunction granted by Yeung J. I will also adjourn the Defendant's summons for variation with liberty to restore after 4 January 2002. I will invite Mr Remedios or those instructing him to prepare a draft order reflecting those variations for my approval.
8. I also direct that the matter be listed back before me if possible. But if my diary is too tight, the matter can be heard by other judges.
9. Costs of today be reserved.
10. Personal service of today's order be dispensed with. Service on the Defendant's and the intervenors' respective solicitors deemed to be good and sufficient service for the purpose of O. 45 r. 7.
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(M H Lam) |
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Deputy High Court Judge |
Representation:
Mr Leo Remedios and Mr Jerry Ng, instructed by Messrs Chan, Lau & Wai, for the Plaintiff
Mr Barry Hoy, of Messrs Robertsons, for the Defendant
Mr David McKellar, of Messrs Horvath Giles, for intervening parties - Stella Lam Wai Ping & Irvine Development Limited
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