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HCA1143/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1143 OF 2011
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BETWEEN
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POON SHU FAN |
Plaintiff |
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and
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WONG TIN YAN |
1st Defendant |
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LEUNG YUK LIN |
2nd Defendant |
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Before : Deputy High Court Judge Mayo in Chambers
Date of Hearing : 22 July 2011
Date of Judgment : 22 July 2011
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J U D G M E N T
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1. Although this is essentially a call-over application I consider that it is necessary for me to deliver a short judgment.
2. To J granted an ex parte Mareva injunction restraining the defendants from disposing of assets in excess of $2,749,000 and an additional $1,000,000 for the 2nd defendant.
3. Very shortly the history of this case is that the plaintiff was a close friend with the defendants’ daughter, Joey.
4. The plaintiff went to Vancouver and started a business selling cell telephones and other applications. According to her affidavit evidence she employed Joey as an assistant.
5. According to Joey’s affidavit she was a partner in the business.
6. The goods which were sold in Vancouver were sourced from Hong Kong.
7. Joey claims that the 2nd defendant, her mother, bought the goods in Hong Kong and sent them to Vancouver for sale and was reimbursed by the Vancouver business.
8. The plaintiff claims that she remitted moneys to the 2nd defendant in Hong Kong for investment purposes and in pursuance of an agreement she made with the 2nd defendant to purchase a flat which would be occupied by the defendants.
9. The idea was that the plaintiff would provide most of the funding including the mortgage payments and that in due course when the property was sold, an account would be struck and any profit obtained by virtue of the enhancement in the value of the property would be split 50/50.
10. In June 2010, there was a big falling out between the parties.
11. It is the plaintiff’s case that the 2nd defendant used the moneys for her own purposes and failed to account to her. She feared that unless the 2nd defendant was restrained there was a serious risk that assets would be dissipated.
12. The plaintiff is still in Vancouver and has recently given birth.
13. Ms Lan, for the defendants, has accepted that it is not practicable to attempt, in all the circumstances, at today’s hearing to set aside the ex parte order.
14. She has however pointed out what appears to be serious non-disclosures in the plaintiff’s supporting affidavit — particularly the major role assumed by the 2nd defendant in sourcing goods for the Vancouver business.
15. Also she points out the delay which has occurred in the plaintiff taking action against the defendants and it does appear that the delay has not been satisfactorily accounted for.
16. While she accepts that the Mareva should be allowed to continue until the early hearing of this inter parte’s application she resists the application that the court should order that there should be, at this stage, full disclosure of assets and inspection of the bank accounts which have been already identified.
17. In addition to this no provision was made in To J’s order for the defendants’ living expenses to be provided for or for payment of their legal expenses.
18. Mr Leung, for the plaintiff, submitted that having regard to the risk of dissipation it was essential that there should now be full disclosure of assets and inspection of the accounts.
19. While I accept that such an order would normally be continued I am satisfied that in the circumstances of this case, particularly having regard to the real possibility that there may have been material non‑disclosure that I should order a stay of To J’s ex parte order in as much as that there be disclosure and inspection and that the stay will be until the substantive hearing of the inter parte summons, and I so order.
20. The basis of Mr Leung’s opposition to the order for payment of the defendants’ daily expenses and legal expenses is that the plaintiff’s claim is essentially a proprietorial claim and that in essence she is being asked to use her own money to fund the defendants of this action.
21. I am satisfied that in all the circumstances of this case that I should order that provision should be made for these expenses, and I so order.
22. The amounts which have been proposed by the defendants are not, in my opinion, unreasonable.
23. I will hear the parties on the form of the order to be made.
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(Simon Mayo)
Deputy High Court Judge |
Mr Wilson Leung, instructed by Messrs Danny Lau & Lam, for the Plaintiff
Ms G. Lan, instructed by Messrs Peter W.K. Lo & Co., for the Defendants
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