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HCA 3017/2017
[2019] HKCFI 2665
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 3017 OF 2017
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BETWEEN
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TIGER RESORT ASIA LIMITED |
Plaintiff |
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and
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KAZUO OKADA |
1st Defendant |
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OKADA HOLDINGS LIMITED |
2nd Defendant |
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LI JIAN |
3rd Defendant |
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GOLDLUCK TECH LIMITED |
4th Defendant |
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OKADA FINE ART LIMITED |
5th Defendant |
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| Before: Hon K Yeung J in Chambers |
| Date of Written Submissions by the Plaintiff: 16 September 2019 |
| Date of Written Submissions by the 1st Defendant: 26 August 2019 |
| Date of Decision: 31 October 2019 |
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D E C I S I O N
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Background
1. On 31 May 2019, I handed down my decision (the “31/5 Decision”). I refer to the same and adopt the same terms used therein. For reasons set out in the 31/5 Decision, I:
(a) in respect of the 6/6 Summons:
(i) granted the Further Injunction in terms of §1.1 (concerning the 3rd Sum) and §1.2 (concerning HK$22,556,519.38 out of the 4th Sum) of the draft order annexed to Mr Whitehead’s written submissions;
(ii) granted the discovery in aid set out at §2 of the draft order;
(iii) adjourned the balance of the 6/6 Summons sine die with liberty to restore; and
(b) in respect of the 8/6 Summons, allowed the application in terms of §2 of the same, save that I ordered that the cross-examination be confined to §§5.1 and 5.2 of D1/#2 (as opposed to the entirety of D1/#2 as stated at §2 of the 8/6 Summons).
2. By way of summons dated 14 June 2019 (the “Leave Summons”), D1 applies under Order 59 rule 2B for leave to appeal the 31/5 Decision.
3. On 10 July 2019, I directed that the application be disposed of on paper and gave directions for the lodging of submissions.
4. On 9 August 2019, a new team of legal advisers representing D1 wrote in and sought an extension of 14 days from 9 August 2019 to lodge submissions in support of the Leave Summons.
5. On 15 August 2019, I granted D1 an extension of time to 26 August, and directed P to lodge any reply within 21 days upon receipt of D1’s submissions.
6. On 26 August 2019, Mr Adrian Wong, counsel for D1, filed his submissions in support of D1’s application for leave. On 16 September 2019, Mr Steven Kwan and Ms Charlotte Chan, counsel for P, filed their submissions in reply on behalf of P.
The test
7. When deciding whether to grant leave to appeal, the consideration is whether D1 has shown that his proposed appeal has a “reasonable prospect of success”.
8. I agree with Mr Kwan [1] that whether any “reasonable prospect of success” has been shown should not be considered in vacuum, but should be considered in the light of the nature of the proposed appeal.
9. In the present case, D1 proposes to appeal against my exercise of discretion in granting the Further Injunction and in ordering the cross-examination of D1. I note, as I have recorded at §31 of the 31/5 Decision, in particular that Mr Pang SC (senior counsel then appealing for D1 before me) did not seek to dispute that a serious issue to be tried on merits had been shown. The proposed appeal hence relates to my consideration of “balance of convenience” and “just and convenient”.
10. I respectfully refer to without repeating the “established principles” applicable to proposed appeal against exercise of discretion, as explained by Kwan JA in Re Decade Technology Ltd, HCMP 1941/2011, 31 January 2012 (at §21).
The proposed grounds
11. In the Leave Summons, D1 set out two proposed grounds (“Proposed Grounds #1 and #2”). In Mr Wong’s submissions, he sets out one further ground which is not in the Leave Summons. I will call it the Proposed Ground #3. I will deal with them in turn.
Proposed Grounds #1.1 and #1.2
12. In gist, it is sought to argue that I erred at §42 of the 31/5 Decision that the balance of convenience lies in favour of the grant of the Further Injunction, and that it was fair and convenient and convenient to do so. In particular, it is sought to be argued that D1 has adduced evidence on his means when I erroneously found that he had not [2], and that my “finding” at §42(k) was erroneous in the absence of any allegation that D1 would not be good to meet P’s claim. It has further been submitted that I have reversed the burden of proof on adequacy of damages [3].
13. I have set out my understanding of the law at §40 of the 31/5 Decision. I state in particular at §§40(c) and 40(e) that “At those stages [when balance and convenience and just and convenient fall under consideration], the broad discretion of the court is engaged. Whilst relevant, adequacy of damages remains only one of the relevant considerations to be taken into account…”, and that “Going hand-in-hand with the question of adequacy of damages is the issue as to whether the defendant is good for the money. If he is not, it may hardly be said that damages is adequate as a remedy”. D1 does not seek to challenge the approach I set out there.
14. I have set out at §42(h) the evidence on D1’s alleged wealth or worth. I also set out at §42(i) my observations on the wanting nature of D1’s assertion that “It cannot be validly suggested that I would be unable to meet any claim for damages”.
15. The monetary amount of the claim by P against D1 is very substantial. Further, as emphasized by Mr Kwan in his submissions [4], P’s claim is proprietary in nature.
16. In my view, I am justified in considering the totality of the evidence when balancing the convenience. The evidence includes the size and nature of P’s claim, and the evidence on D’s net worth. That was the exercise I was undertaking when deciding how my discretion should be exercised. There is further no question of any burden of proof having been reserved.
17. In my view, Proposed Grounds #1.1 and #1.2 have no reasonable prospect of success.
Proposed Ground #1.3
18. As part of Proposed Ground #1, it is sought to be argued that I erred in granting the Further Injunction when there was evidence of certain competing claims.
19. I repeat §§21(f), 22 and 42(f) of the 31/5 Decision. For those reasons, and given my overall consideration of the evidence in balancing the convenience, I am of the view that Proposed Ground #1.3 has no reasonable prospect of success.
Proposed Ground #2
20. Proposed Ground #2 concerns the Order I made in respect of the 8/6 Summons. It is sought to be argued that I have failed to consider that ordering pre-judgment cross-examination is exceptional and rare in view of the time and expenses involved which could be wasted and injustice caused to D1.
21. In my view, I have sufficiently considered those matters — see in particular §§59, 60, 65 and 67 of the 31/5 Decision.
22. It is further sought to be argued that I have failed to adequately consider the injustice caused to D1 without giving him another opportunity to file further disclosure.
23. I have set out at §§48-51 and 62 of the 31/5 Decision P’s requests for further disclosure via correspondence. D1 had been afforded the chance to file a further affirmation to effect disclosure. He failed to take that up. Further, and as pointed out by Mr Kwan [5], D1 maintained in D1/#3 and through his counsel during the hearing that he had complied with Chan J Order [6], and that the alternative of filing further disclosure had never been suggested by him or on his behalf.
24. In my view, Proposed Ground #2 has no reasonable prospect of success.
Proposed Ground #3
25. Proposed Ground #3 relates to the relative strength of the parties’ case.
26. Mr Pang for D1 during the trial did not seek to dispute that a serious issue to be tried on merits had been shown [7].
27. Mr Wong argues [8] that “where the factors render the balance of convenience even, there is a necessity for the learned Judge to consider the quality of P’s evidence and the relative strength of the parties’ case”. In my view, the balance of convenience was not even. The consideration of relative strength is not engaged. I refer to §42(m) of the 31/5 Decision.
28. In the context of this proposed ground, Mr Wong seeks to rely on a certain resolution not adduced before me for the purpose of the hearing. I accept Mr Kwan’s submission [9] that D1 has failed to satisfy conditions 1 and 2 of Ladd v Marshall, and the issue of relative strength of parties’ case should not be allowed to be reopened at this stage.
29. In my view, the Proposed Ground #3, whether considered separately or in conjunction with Proposed Ground #1 (as Mr Wong in his submissions is seeking to), has no reasonable prospect of success.
Conclusion
30. In my view, all the Proposed Grounds, whether considered separately or together, have no reasonable prospect of success.
Disposition
31. I therefore refuse D1 leave to appeal.
32. In the circumstances, I also refuse any stay.
Costs
33. I make a cost order nisi that D1 should bear the costs of this application, to be taxed if not agreed. Any party who seeks summary assessment or otherwise any variation should file its submissions within 14 days from the date hereof, submissions in opposition within 14 days of receipt, and reply within 7 days thereafter.
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(Keith Yeung) |
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Judge of the Court of First Instance |
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High Court |
Written submissions by Mr Steven Kwan and Ms Charlotte O T Chan, instructed by Haldanes, for the plaintiff
Written submissions by Mr Adrian Wong, instructed by Tse Yuen Ting Wong, for the 1st defendant
[1] §1 of his submissions.
[2] §§42(h) and (i).
[3] §6 of Mr Wong’s submissions.
[4] §10.
[5] At §22 of his submissions.
[6] See §57 of the 31/5 Decision.
[7] §31 of the 31/5 Decision.
[8] §15 of his submissions.
[9] At §28.
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