LUCKY MONEY LTD AND OTHERS v. GUANGZHOU CHUNG KIN ENGINEERING CO AND OTHERS

HCA 542/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 542 OF 2007

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BETWEEN

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DECISION

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1.  There are 2 summonses before me:

(i)   A summons by the 1^st and 3^rd defendants (collectively “the defendants”) to set aside service of the writ out of jurisdiction, stay of proceedings on the ground of forum non conveniens and striking out of the statement of claim.

(ii)  A summons by the intended intervener, Kwong Ian (Hong Kong) Construction and Real Estate Development Co. Ltd. (“Kwong Ian”), who was the former 2^nd defendant, for leave to intervene with a view to permanently staying this action and striking out the claims against the defendants. The ground relied on was the plaintiffs’ breach of undertakings and duties to Kwong Ian under a settlement deed.

CLAIM IN THE PRESENT ACTION

2.  The action concerns loans made by Tianjin Jinfu Expressway Co. Ltd. (“Jinfu”) to the plaintiffs (‘the Lucky Companies”) in the sum of RMB 250,000,000.  The Lucky Companies claim that the loan was wrongfully diverted by D3 (“Ms Shi”) to the account of D1 (“GZCK”) on dates unknown on the instructions of GZCK and/or Kwong Ian and one Mr. Chen Ru Gui. The Lucky Companies claim that the defendants are liable to account to the Lucky Companies for money had and received, that the defendants held the loan as the Lucky Companies’ constructive trustees and damages for conspiracy to defraud or to injure against both defendants.  They also seek damages for Ms Shi’s breach of fiduciary and/or contractual duties.

BACKGROUND

3.  The background facts have been helpfully summarized in the skeleton submission of Mr. Mak, counsel for the defendants and Kwong Ian and I set out the relevant parts below.

4.  For the purpose of building and operating an expressway in Tianjin (“the Project”), 3 Sino-foreign joint venture companies (“the  Project Companies”) were set up, each in charge of one section of the expressway.  One of them was Jinfu. Each project company had 2 joint venturers, a “Chinese side” venturer holding a 40% stake in the project and a “foreign side” holding a 60% stake.   On the foreign side, the original venturers were the Lucky Companies. 

5.  The foreign side of the project was originally owned by several investors.  The most prominent figure was Mr. Ho Kai Cheong (“Mr. Ho”) who made the affirmations on behalf of  the Lucky Companies in this action.  His and/or his associates’ stake in the foreign side was held through a company called Golden Tree Investments Ltd. (“Golden Tree”). 

6.  Initially, Kwong Ian was not involved in the Project. In March 1998, at the invitation of the original investors, Kwong Ian agreed to become an investor on the foreign side because of its ability to raise bank loans through its associated company, GZCK. 

7.  To facilitate Kwong Ian’s participation, a holding company called Inter Ease International (Highways) Ltd. (“Inter Ease”) was set up by Kwong Ian and the original investors on the foreign side.  Inter Ease was effectively the holding company of the 3 Lucky Companies because, as the only 2 shareholders, both Kwong Ian and Mr. Ho held their shares in the Lucky Companies on trust for Inter Ease.

8.  With regard to the shareholdings of Inter Ease, Kwong Ian held 9,999 shares and Mr. Ho held one.  As a result of declarations of trust, there were 2 camps: Kwong Ian held 49%, and the remaining 51% was held by Mr. Ho on his own and on behalf of other original investors controlled by him, i.e. Golden Tree and one South Beach Group Ltd. (“South Beach”).

9.  Both Kwong Ian and Golden Tree had nominee directors on the boards of Inter Ease and each of the Lucky Companies.  One of Kwong Ian’s nominee directors was Ms. Shi.  One of Golden Tree’s directors was Mr. Ho.

10.  Kwong Ian arranged for GZCK to secure bank loans totalling RMB 258 million for the project.  GZCK lent the same amount to Kwong Ian who, in turn, lent the same amount to Inter Ease.  The loan was forwarded to Jinfu and used for the project.

11.  In 2000, using the project’s future toll fee income as security, Jinfu secured a bank loan of RMB 500 million.  In March 2001, Jinfu resolved that out of that loan, RMB 250 million would be made available for use of the foreign side (i.e. the Lucky Companies).  (In HCA 447 of 2006 and on appeal in CACV 266 of 2007, it was held that this latter sum was in the nature of a loan from Jinfu to the Lucky Companies.)

12.  At about that time, various parties on the foreign side (i.e. Inter Ease, Kwong Ian, Mr Ho, Golden Tree and South Beach) entered into the Debt Restructuring Agreement dated 17.3.2001.  Kwong Ian and Mr. Ho also entered into the 1^st and 2^nd Supplemental Agreements on the same date.    These few Agreements were agreed to by Kwong Ian and Mr. Ho who were then all the registered members of the Lucky Companies.

13.  The material clauses of the Debt Restructuring Agreement provided as follows:

“2. 乙丙丁 (Kwong Ian, Golden Tree and South Beach) 三方通過由丙方之授權代表何繼昌 (Mr. Ho) 將該項目的路費收益作抵押向銀行安排的融資, 其中外方公司 (the Lucky Companies) 目前所得數目應爲人民幣 3.15 億元, 減除其中匯入項目公司的人民幣 6 仟多萬元後剩下淨額之人民幣 2.5 億元 (the RMB250 million) 將全用於清還前言(2)(一)之貸款 (the loans of RMB 258 million borrowed by Inter Ease from Kwong Ian) 和利息 … …

8. 于收到 2.5 億元人民幣提款單后,甲方 (Inter Ease) 需在五個工作天内將該款項用於清還前言2(一) 所題述之人民幣 2.58 億元貸款及利息, 余下未清付的本和息根據本協議第 3 及5 條處理。”

14.  The 3^rd recital to the 2^nd Supplemental Agreement shows receipt of RMB 2.58 million by Kwong Ian:

“由於償還人民幣2.58 億元的運作受制銀行的規定，廣仁於收到 2.5 億元人民幣時不能即時一筆還給銀行而必需照銀行規定單筆連息分段償還。”

15.  By a fax dated 14.3.2001 copied to Ms. Shi, Mr. Ho himself asked Kwong Ian for instructions with respect to the identity of the recipient of the RMB 250 million. 

16.  On 19.3.2001, Ms Shi (then a director of Jinfu and Kwong Ian) caused Jinfu to make 5 remittances totalling RMB 250 million from its account in Guangzhou to GZCK’s account in Guangzhou for the purpose of repaying the bank loans of RMB 258 million and the interest thereon.

17.  In April 2001, the shareholding and management structures of Inter Ease and the Lucky Companies were reorganized so that Mr. Ho’s camp had assumed effective control over these companies.

18.  Almost immediately thereafter, Mr. Ho’s camp began to take steps to eliminate Kwong Ian’s further participation and interests in the foreign side of the Project.  His camp complained that Kwong Ian was, through its nominee directors (e.g. Ms. Shi) guilty of irregularities in the handling of fund remittances from the foreign side e.g. “unauthorized withdrawals” and “diversions of fund” from Inter Ease.  Mr. Ho’s camp proceeded to remove all of Kwong Ian’s nominee directors on the board of the Project Companies in about 2004 and later the nominated directors on the board of the Lucky Companies in about August 2006.

19.  In 2004, Mr. Ho’s camp took steps which caused the foreign side’s (i.e. Lucky Companies’) interests in the Project to become assigned (“the 2004 Assignment”) and vested in a company called Glorious Sun (Highway Development) Ltd (“Glorious Sun”), which was owned and controlled by Mr. Ho and his camp.  The effect was that Glorious Sun had, on the official records, replaced the Lucky Companies as the foreign side. 

20.  There then followed a series of litigation and arbitration, among others:

(i) HCA 260 to 262 of 2006: Kwong Ian alleged that Mr. Ho’s camp misappropriated the foreign side’s interests in the Project. As a result, Kwong Ian commenced legal actions in Tianjin in late 2005 and in Hong Kong in about early 2006. In the Hong Kong action, Kwong Ian obtained an injunction restraining Glorious Sun from disposing of the foreign side’s interests in the Project.

(ii) HCA 447 of 2006: Jinfu sued the Lucky Companies for recovery of the outstanding indebtedness with regard to the RMB 250 million (which stood at about RMB 177 million after adjustments). The Court of First Instance found in favour of Jinfu and the decision was upheld by the Court of Appeal in CACV 266 of 2007.

(iii) The Lucky Companies arbitration: This was taken out by all the shareholders of Mr. Ho’s camp in the Lucky Companies against Kwong Ian. It was pleaded that the Lucky Companies were caused to pay RMB 250 million to Kwong Ian pursuant to the Debt Restructuring Agreement. The money used in paying Kwong Ian was alleged to form part of the property in the 60% interest in the joint ventures and thus it was beneficially owned by Inter Ease. Kwong Ian was allegedly liable to refund to the Lucky Companies the RMB 250 million on the ground that the Debt Restructuring Agreement should be void for misrepresentation and unilateral mistake, because Kwong Ian never procured or remitted RMB 258 million to the joint ventures and Kwong Ian had diverted money from Inter Ease for purposes unrelated to the project. There was no plea that the Lucky Companies could have a claim in their own right, or that the payment was made without authorization, as pleaded in the present action.

(iv) The Inter Ease arbitration: Golden Tree claimed against Kwong Ian for breach of the Inter Ease Shareholders’ Agreement. Allegations similar to those in the Lucky Companies arbitration were made in the statement of claim. For example, it was alleged that the Lucky Companies were trustees for Inter Ease with regard to the 60% in the joint ventures. Kwong Ian failed to inject RMB 258 million into the joint ventures in breach of the Inter Ease Shareholders’ Agreement. Kwong Ian had diverted money in Inter Ease’s account for purposes other than funding the project. Golden Tree allegedly overpaid interest on the basis of the RMB 258 million loan.

(v) HCA 1720 of 2006: Inter Ease (by then controlled by Mr. Ho’s camp) sued Kwong Ian. It was pleaded that Kwong Ian had in truth only lent RMB 172 million to Inter Ease. As Kwong Ian had caused Inter Ease to repay a sum exceeding RMB 258 million by March 2001, Kwong Ian was sued for the “over-repayment”.

(vi) The present action, which was instituted in 2007 but was not served on the defendants until 2010.

The allegations which made up the claims in items (ii) to (vi) were all directly related to the RMB 250 million.

21.  Whilst all those legal proceedings and arbitrations were ongoing, Kwong Ian and Mr. Ho’s camp explored the possibility of a sale of the foreign side’s interest in the Project with a view to achieving a clean break from the Project and from one another.  Eventually one Choice Tone Ltd. (“Choice Tone”) purchased the interests of the foreign side.

22.  In September 2009, a deal was struck among Choice Tone, Kwong Ian and Mr. Ho’s camp.  It was reflected in various agreements including the Settlement Deed dated 23.9.2009, the Foreign Interests Assignment dated 25.9.2009 and the Indebtedness Assignment dated 19 November 2009.

23.  For the purpose of the sale of the foreign side’s interests, the 2004 Assignment was ratified by special resolutions of the Lucky Companies in general meeting.  The foreign sides’ interests were then sold by Glorious Sun (not the Lucky Companies) to Choice Tone, the consideration of which was:

(i) A cash component in the sum of RMB 340 million – RMB 220 million for Glorious Sun and RMB 120 million for Choice Tone; and

(ii) A non-cash component in the form of Choice Tone’s assumption of the foreign side’s (whether Lucky Companies’ or Glorious Sun’s) original obligation to pay Jinfu their indebtedness with respect to the RMB 250 million (which stood at RMB 147 million as at 1.1.2008). There was corresponding extinguishment of the Lucky Companies’ repayment obligation.

24.  For the purposes of arriving at a full and final settlement of all disputes between Kwong Ian’s camp and Mr. Ho’s camp, the parties had agreed to the terms as provided for in clauses 17 and 18 of the Settlement Deed (detailed in paragraph 35 below).  To facilitate a clean break between the 2 camps, Kwong Ian’s shares in each of the Lucky Companies were transferred to a nominee of Glorious Sun and Kwong Ian’s shares in Inter Ease were transferred to Mr. Ho, all at nominal consideration.

THE EFFECT OF THE ABOVE DEALINGS ON THE PRESENT ACTION

25.  The issue is whether or not having regard to the above dealings, any claim which the plaintiffs might have against the defendants and/or the RMB 250 million could not be maintained having regard to:

(i) The Debt Restructuring Agreement; and

(ii) The full and final settlement under the Settlement Deed.

The Debt Restructuring Agreement

26.  Five remittances by Ms Shi to GZCK (which were the subject of the alleged diversion of funds in the present action) were made pursuant to the Debt Restructuring Agreement.  Mr. Ho was clearly aware of them and himself asked Kwong Ian by fax for instructions as to the identity of the recipients.  If the RMB 250 million was intended for any of the Lucky Companies, Mr. Ho would have asked for the RMB 250 million to be paid to the Lucky Companies instead. 

27.  The present action is against the clear wording of the Debt Restructuring Agreement and Mr. Ho’s fax.   By virtue of the facts set out in paragraphs 7 and 8 above, all the parties who had an interest (direct or indirect) in the Lucky Companies were parties to the Debt Restructuring Agreement. 

28.  According to In re Duomatic Ltd., [1967] 2 Ch 365, where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be. 

29.  Therefore, the fact that no resolution had been passed by the boards of the Lucky Companies authorizing Ms. Shi to effect the remittances was irrelevant.  The Lucky Companies should not be permitted to pursue a bogus claim of diversion of funds against the defendants when they consented to or had knowledge of the “diversion”.

Full and Final Settlement under the Settlement Deed

30.  The Settlement Deed was entered into on 23.9.2009 whereas the present action was instituted in 2007.  One of the affirmations of Ms. Ho filed on behalf of  the Lucky Companies in seeking to extend the validity of the writ in the present action did refer to the settlement amongst the Lucky Companies, Kwong Ian, Jinfu and other parties and the fact that it included several other court proceedings in Hong Kong and the Mainland.  Mr. Ho, however, affirmed that the present action did not come under the Settlement Deed.  On counsel’s advice, so Mr. Ho affirmed, the action against Kwong Ian was discontinued.  This action against GZCK and Ms Shi was, however, pursued.

31.  It is true that the defendants were not parties to the Settlement Deed. In fact, it was upon legal advice that GZCK made a considered decision not to be a party to the Settlement Deed.  That, however, does not bar the Court from construing the Settlement Deed to ascertain the true ambit of the settlement.

32.  The following principles of construction are relevant and are not disputed.  In Jumbo King Ltd. v. Faithful Properties Ltd. [1999] 2 HKCFAR 279, Hoffmann NPJ says,

“The construction of a document is not a game with words. It is an attempt to discover what a reasonable person would have understood the parties to mean. And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve. … [The] overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean. Therefore, if in spite of linguistic problems the meaning is clear, it is that meaning which must prevail.”

33.  Commercial contracts should be construed in a commercially sensible manner.  In Mannai Investment v. Eagle Star Life Assurance [1997] AC 749, 771, Lord Steyn has this to say,

“In determining the meaning of the language of a commercial contract …, the law therefore generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language …”

34.  In L Schuler AG v. Wickman Machine Tool Sales Ltd. [1974] AC 235 at 251, Lord Reid says,

“The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.”

35.  With the legal principles in mind, I now turn to the relevant clauses in the Settlement Deed. 

(i) The 2^nd recital referred to the 2004 Assignment to Glorious Sun.

(ii) The 4^th recital referred to the High Court actions and arbitrations that Inter Ease had taken against Kwong Ian in respect of the dispute over capital injection:

“暢旺公司對廣仁公司在暢旺公司的出資金額提出爭議, 並在香港高等法院提起訴訟及于香港國際仲裁中心提起仲裁。”

(iii) The 5^th recital set out the intention to achieve an overall settlement:

“現本和解契約各方一致同意就該2004 年的轉讓引起的爭議及出資爭議包括由此而產生的一切訴訟 、仲裁及投訴達成全面和解。” （the 5^th recital）

(iv) In Clause 17.1(a), the parties declared that apart from specified litigations or arbitrations, there were no proceedings or intended proceedings against one another:

“除已在本契約或本契約所述的附件中披露的訴訟案件、仲裁案件、指控/投訴等爭議糾紛及 HCA 1373/2006 之外，本契約各方， 包括廣仁公司或金樹公司雙方任何一方（包括其關聯方）均沒有其他針對另一方的訴訟案件、仲裁案件、指控/投訴等爭議糾紛正在進行之中或擬準備進行；”

(v) Clause 17.1(c)barred Kwong Ian, Golden Tree & their associates from using the name of Inter Ease, Lucky Companies & their shareholders from making claims against the parties in the litigations or arbitrations covered by this Settlement Deed:

在買方收購外方權益及承接該外方債務的交易完成后，廣仁公司或金樹公司雙方任何一方（包括其關聯方）及本契約任何一方均不得再以大利公司及/或暢旺公司的名義、或作爲大利公司、暢旺公司股東的名義向本契約所涉及訴訟/仲裁案件的原告或被告追索任何權利/權益（包括但不限於以維護大利公司、暢旺公司任何權利/權益為由擬提起的追索或以維護該方作爲大利公司、暢旺公司股東任何權利及/或權益為由擬提起的追索。）”

(vi) Clause 17.1(d) was to settle all disputes in relation to shareholders and Glorious Sun, and to prohibit Kwong Ian, Golden Tree and their associates from pursing disputes, complaints, litigation or arbitration on matters covered by this Settlement Deed:

“在買方收購外方權益及承接該外方債務的交易完成后，所有涉及金樹公司及廣仁公司兩方作爲大利公司、暢旺公司股東[之]間的糾紛及涉及朗日公司的爭議全部和解， 廣仁公司或金樹公司雙方任何一方（包括其關聯方）及本契約任何一方不得就本契約内已列明達成和解的事宜繼續進行或提出爭議、投訴、訴訟或仲裁或向本契約任何其他方提出、進行任何與本契約所涵蓋或相關事宜的任何爭議、投訴、訴訟或仲裁 ；”

(vii) Clause 17.1(e) provides that if the Lucky Companies sued Kwong Ian or its associates on matters covered by this Settlement Deed, Golden Tree and Mr. Ho will be wholly responsible for the resolution and bear all compensation and costs arising therefrom.

“如大利公司、暢旺公司及/或朗日公司或其股東 … … 因本契約的約定或所涉及的任何事情向廣仁公司或其關聯方或其任何股東或董事提出訴訟/仲裁/投訴等，則金樹公司及何繼昌先生將會負責全力及儘快解決有關訴訟/仲裁投訴，並會全額彌償廣仁公司及其關聯方因有關訴訟/仲裁/投訴所引致及產生的一切賠償及訴訟費（包括律師費）；”

(viii) Clause 17.1(g) contained an undertaking by all parties on behalf of themselves, their associates and shareholders not to sue the other parties, their associates, shareholders and directors on matters covered by this Settlement Deed. Kwong Ian on one part and Mr. Ho and Golden Tree on the other will indemnify each other against all damages and costs arising from litigations.

“… … 本契約的各方自身，並保證其關聯方及其股東不會以任何方式 … … 向本契約的其他方及其關聯方及其股東或董事就本契約涵蓋事項提出的爭議、投訴、訴訟或仲裁，及確認所有涉及金樹公司及廣仁公司兩方作爲大利公司、暢旺公司股東[與]股東之間的糾紛及涉及朗日公司的爭議全部和解，廣仁公司或金樹公司雙方任何一方（包括其關聯方）及本契約任何一方不得就本契約内已列明達成和解的事宜繼續進行或提出爭議、投訴、訴訟或仲裁或向本契約任何其他方提出、進行任何與本契約所涵蓋或相關事宜的任何爭議、投訴、訴訟或仲裁, 另：-

(1) 如本契約廣仁公司以外的各方或多方或其股東或其關聯方因本契約的約定或所涉及的任何事情向廣仁公司或其關聯方或其任何股東或董事提出訴訟/仲裁/投訴等，則金樹公司及何繼昌先生及第14.1 條所述股權轉讓的受讓方將會負責全力及盡快解決有關訴訟/仲裁投訴，並會全額彌償廣仁公司或其關聯方或其任何股東或董事因有關訴訟/仲裁/投訴所引致及產生的一切賠償及訴訟費（包括律師費）；

(2) 如廣仁公司或其股東或其關聯方因本契約的約定或所涉及的任何事情向本契約其他各方公司或其關聯方或其任何股東或董事提出訴訟/仲裁/投訴等，則廣仁公司將會負責全力及盡快解決有關訴訟/仲裁投訴，並會全額彌償本契約其他各方公司或其關聯方或其任何股東或董事因有關訴訟/仲裁/投訴所引致及產生的一切賠償及訴訟費（包括律師費）。”

(ix) Clause 18.6 contained a declaration from Mr. Ho and Golden Tree that the Lucky Companies would not sue Kwong Ian and its associates, shareholders or directors in respect of the shareholding of the Lucky Companies and project rights.

“金樹公司及何繼昌先生聲明及確認一旦朗日公司已根據本契約從越秀交通有限公司或其指定的子公司翔通有限公司或項目公司中方作爲買方收取人民幣2.2 億元1連利息(折合港幣), 則暢旺公司及大利公司及/或朗日公司及/或金樹公司及/或何繼昌先生不會向廣仁公司及其關聯方股東/董事就大利公司和暢旺公司的股權及項下權益或天津項目公司及項下權益索取/追討任何款項，而廣仁公司及其關聯方將不需向上述任何公司支付任何款項 （本契約沒有約定的承諾及協議不包括在内）。”

(x) Clause 18.2 defines “associates”

“在本契約中, 關聯方的定義為:-

(i) 就廣仁公司的關聯方為 (a) 澳門廣仁建築置業發展有限公司及(b) 廣州中建工程公司及 (c) 廣州建築集團有限公司; … …”

36.  The Settlement Deed was thus wide in ambit:

(i) In terms of parties, it was to cover the parties to the Settlement Deed, their associates, directors and shareholders.

(ii) In terms of scope, it not only covers known and unknown litigation or arbitration but also “disputes and complaints” that have not yet culminated in litigation or arbitration.

(iii) In terms of subject matter, it covers disputes over money/capital transactions and shareholding over the Lucky Companies/foreign side’s interests.

(iv) In terms of purpose, it was to bring finality to the disputes under (iii).

37.  The present action was never disclosed to Kwong Ian until after execution of the Settlement Deed.  Therefore, there was no express reservation in the Settlement Deed permitting the Lucky Companies to pursue it.  Mr. Wu for the Lucky Companies argues that the Lucky Companies are at liberty to pursue this action.  His arguments can be broadly classified as:

(i) There was no deliberate concealment of the present action. After the Court of Appeal in CACV 266 of 2007 upheld the decision that the Lucky Companies owed Jinfu the balance outstanding under the RMB 250 million, the Lucky Companies were considering voluntary liquidation. Mr Wu concedes that without contemplation of the winding-up proceedings, the present action clearly fell within the term “擬準備進行” within the meaning of Clause 17.1(a). However, because of the consideration of voluntary liquidation, there were no proceedings擬準備進行。

(ii) The present action does not fall within the scope of the Settlement Deed.

(iii) There was only a settlement and no adjudication of issues on the merits， so they were at liberty to sue the defendants.

(iv) GZCK and Ms Shi were not parties to the Settlement Deed.

38.  With regard to argument (i), I can hardly see what difference the intended voluntary liquidation could make.  The term “擬準備進行” was clear in its meaning.  It covered actions soon to be commenced or temporarily held in abeyance.  The present action fell within its meaning as it was held in abeyance pending resolution to wind up or settlement.  The Lucky Companies could not even claim that they had forgotten about this action because they promptly applied for extension of the validity of the writ each year and both the intended liquidation and the settlement were relied on in those applications.  The irresistible inference is that the Lucky Companies had deliberately concealed the present action during the negotiation for settlement.  Argument (i) fails.

39.  With regard to argument (ii), Mr. Wu argues that what was encompassed in the Settlement Deed was stated in the preamble, which did not mention the RMB 250 million.  The Settlement Deed dealt with disposal of foreign interests, so Mr. Wu submits, but not internal matters like breach of director’s duties or misappropriation of funds.  With respect, Mr. Wu is correct only in the literal sense.  He overlooks the reference to “出資爭議” and the reference to the litigations and arbitrations in the preamble which were directly related to the RMB 250 million. 

40.  Mr. Ho claims that “the purchase price offered by Choice Tone took into full account of the debt owed to the [Project Companies] by the plaintiff [i.e. the Lucky Companies] in the Jinfu Action [i.e. HCA 447 of 2006].  Hence [the Lucky Companies] sold their interests in the [Project] upon deducting the relevant sum.”  I cannot agree.  It was true that as a result of the decisions in HCA 447 of 2006 and CACV 266 of 2007, there was a liability due from the Lucky Companies to Jinfu.  However, that liabliltiy had already been taken up by Choice Tone.  Further, it was Glorious Sun (not the Lucky Companies) who was the seller of the foreign side’s interests.  The Lucky Companies had already ratified the 2004 Assignment pursuant to the Settlement Deed and they were not entitled to receive any sum from the sale of such interests.  If Lucky Companies were permitted to succeed in the present action, they would receive a windfall.

41.  Don’t forget that it was originally intended that GZCK would be a party to the settlement.  If it was true that the Lucky Companies did intend to sell their interests in the Project upon deducting the outstanding balance of the RMB 250 million loan, one wonders why that was not dealt with in the Settlement Deed.  If the Lucky Companies were concerned that there was no evidence of discharge of liability over the RMB 250 million given to them or that the sum had not been properly received by GZCK, an express provision could have been included in the settlement. 

42.  I am of the view that the present action fell within the scope of the Settlement Deed.  Argument (ii) fails.

43.  With regard to argument (iii), Mr. Wu submits that there was no evidence of discharge of liability over the RMB 250 million given to the Lucky Companies. As a matter of law, the RMB 250 million had not been properly received by GZCK.  The Lucky Companies, as a matter of right was entitled to claim back the money.  There was no unjust enrichment to the Lucky Companies.  Yes, Mr. Wu concedes, there had been previous inconsistent actions or arbitration proceedings but they had been settled without adjudication.  The Lucky Companies were entitled to seek adjudication in the present action.  I am unable to agree.  As pointed out by Mr. Mak, the supporting affirmation of Mr. Lao has set out the destination of the 5 remittances and there was no valid challenge from the Lucky Companies.  One of the objectives of the Settlement Deed was to settle the disputes between the parties in relation to the issue of capital injection. The RMB 250 million loan was at the core of the Lucky Companies Arbitration, Inter Ease Arbitration and HCA 1720 of 2006 referred to in paragraph 20 above.  By settling those actions or arbitrations without adjudication, the underlying issue must have been settled as well.  Argument (iii) fails. 

44.  With regard to argument (iv), Mr. Wu is only correct literally.  GZCK and Ms Shi were not a parties to the Settlement Deed and cannot, in their own right, rely on it.  They were not “parties to previous litigations or arbitrations” within the meaning of Clause 17.1(c) either.  However, under Clause 17.1(a) of the Settlement Deed, the Lucky Companies had expressly warranted that “there were no action or no intended action against Kwong Ian or any of its associates” apart from those actions expressly mentioned in the Settlement Deed.  By Clauses 17.1(g) and  18.2(ii)(b), “associates” of Kwong Ian expressly included GZCK.  Clause 17.1(d) also prohibited Mr. Ho’s camp from suing the directors of Kwong Ian, which would include Ms Shi.

45.  Clauses 17.1(e), (g) and 18.6 required Mr. Ho and Golden Tree (not the Lucky Companies) to provide an indemnity to Kwong Ian and its associates in case they are sued by the Lucky Companies.  An agreement to indemnify and hold harmless contains within it by necessary implication an implied term not to sue: Deepak Fertilisers and Petrochemicals Corporation v. ICI Chemicals & Polymers Ltd. and others [1999] 1 Lloyds Representative 387.  In the light of the specific references to Lucky Companies in these Clauses, the necessary implication that Mr. Ho and his camp should also procure the Lucky Companies not to sue as well.

46.  The clear wording of the Settlement Deed was to achieve a full and final settlement of all the disputes between the 2 rival camps.  Any claims which the Lucky Companies had against the defendants would have been discharged, compromised or settled by the Settlement Deed. I find that the terms of the Settlement Deed clearly encompassed the present action and the present defendants. It would be ludicrous to suggest that by deliberately concealing one action and hiding behind the fact that an associate or its director of Kwong Ian was not specifically named, the Lucky Companies could now ignore the settlement with impunity, thereby reopening settled disputes. 

47.  Having considered the effect of the Debt Restructuring Agreement and the Settlement Agreement, I now proceed to consider each of the applications under the summonses.

THE APPLICATION TO INTERVENE

48.  GZCK and Ms Shi were not parties to the Settlement Deed and cannot directly enforce that document. However, Kwong Ian does have a sufficient interest in this action.  It can be in breach of its loan agreements with GZCK if it is established that it failed to make full repayment of the loans it owed to GZCK.  Ms Shi can seek an indemnity from Kwong Ian because she was acting as its agent when making the 5 remittances purportedly in discharge of Kwong Ian’s own indebtedness owed to GZCK.  The commercial effect of the Lucky Companies suing GZCK and Ms Shi is very similar to suing Kwong Ian.  This is against the spirit of the Settlement Deed and Kwong Ian seeks to restrain the flagrant breach by the Lucky Companies.

49.  Mr. Wu submits that the claims against Kwong Ian were time-barred and it was their deliberate decision not to pursue any claim against Kwong Ian, hence the withdrawal of the claim against it.   D1 and D3 do not require the presence of Kwong Ian to invoke the Settlement Agreement.  Their arguments on discharge of the claims and abuse of process would have remained the same even without the presence of Kwong Ian. 

50.  The plaintiffs are of course at liberty to decide whether to claim against Kwong Ian.  However, the whole purpose of Kwong Ian intervening is to enforce clauses 17 and 18 for the benefit of the defendants and to prevent the Lucky Companies from advancing the very arguments as they are now doing, i.e. that the defendants were not parties to the Settlement Deed. 

51.  A stranger to a contract is not entitled to rely on the terms of the contract in defence to a claim.  However, where there is a clear breach by a party and if all parties are before the court, the proper order is to dismiss the claim: Snelling v. John Snelling Ltd. [1973] 1 QB 87. 

52.  In that case, 3 brothers co-owned a family company and all of them were directors of it.  The company owed them considerable sums.  By a written agreement among the brothers, it was agreed that if a director was to resign, he would immediately forfeit all moneys owed to him by the company and the moneys would be used towards repaying a mortgage.  A mortgage agreement was signed on the same day as the written agreement.  About 3 months later, the plaintiff brother resigned as a director and sued the company in order to recover the moneys due to him from it.   The other 2 brothers joined in as parties to the action and counterclaimed for a declaration that any sum otherwise due to the plaintiff had been forfeited pursuant to the agreement.  Ormrod J held that the company was a stranger to the contract and was not entitled to rely on it as a defence. Nevertheless there was a clear breach of the agreement by the plaintiff brother in suing the company.  It should be a proper case in which to grant a stay of all further proceedings.  He added that he should go further if all the parties to the agreement, including the company who was to benefit under it, were before the court, the proper order was to dismiss the claim.

53.  The application to intervene is rightly taken out by Kwong Ian and I grant the same.

STRIKING OUT THE ACTION

The Principles on Striking Out

54.  The application is premised on the claim being frivolous, vexatious or is otherwise an abuse of the process of the Court.  A claim is frivolous if it is incapable of reasoned argument, without foundation or cannot possibly succeed. A claim is vexatious if it is oppressive and/or lacks bona fides: Hong Kong Civil Procedure 2011, para 18/19/8.  A claim is an abuse of process if it misuses the court procedure or seeks to relitigate issues decided in earlier proceedings: Hong Kong Civil Procedure 2011, para 18/19/10-11.

55.  In Henderson v. Henderson (1843) 3 Hare 100, at 114-5, Sir James Wigram VC said,

“… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

56.  In Johnson v. Gore Wood & Co.[2002] 2 AC 1, Lord Bingham says,

“But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppels and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to an abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elementsare present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

57.   A party should generally be barred by the rule in Henderson v. Henderson from raising a claim in a second action by deliberately concealing the real facts on which he now relies from the court in order to put forward a bogus claim which is radically inconsistent with them.  Vervaeke (formerly Messina) v. Smith: [1983] 1 AC 145, at 157.

58.  The rule in Henderson v. Henderson is not confined to a claim which led to a judgment but also to one which led to a compromise.  In Johnson v. Gore Wood, above, it was held that:

“The second subsidiary argument was that the rule in Henderson v. Henderson 3 Hare 100 did not apply to Mr. Johnson since the first action against GW had culminated in a compromise and not a judgment. This argument also was rightly rejected. An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action the more harassing.”

Application of the Law to the Facts

59.  Ms. Shi’s transfer of the RMB 250 million to the 1^st defendant was authorized under the Debt Restructuring Agreement. That Agreement was made by, amongst others, all the then registered members of the Lucky Companies.  Upon the Duomatic principle, the claim against the defendants cannot possibly succeed and is hence frivolous.

60.  The alleged “diversion” of the RMB 250 million occurred in 2001 and Mr. Ho was well aware of the same.  It formed the subject matter of the IP report prepared under HCMP 505/2006.  However, it was only in 2007 that the Lucky Companies instituted the present action to avoid limitation period from expiring.  It was not served only 3 years later after the substantive dispute was settled.  If, as alleged by Mr. Ho in his affirmation, Ms. Shi was responsible for keeping the accounts in relation to this sum, there could have been a bona fide request for accounts from her instead.  The present action lacked bona fides and is clearly vexatious.

61.  The present claim is in relation to the RMB 250 million, which belonged to the subject of the litigations and arbitrations set out in paragraph 20(ii) to (v) above. The Lucky Companies could and should have brought in the parties to the present action there so as to have the core issues of who to pay what determined once and for.  By not doing so, and subsequently pursuing the present action after the previous litigations and arbitrations have been settled is an abuse of process of the court.  It is even worse when the Lucky Companies retained the right to pursue the present action by a deliberate concealment during settlement negotiation.  Such pursuit is a collateral attack on the settlement and an act of dishonesty.

62.  The statement of claim should be struck out and the action dismissed.

SETTING ASIDE LEAVE FOR SERVICE OUT OF JURISDICTION

63.  The grounds for setting aside service are as follows:

(i) The application for service out of jurisdiction did not fall within the ambit of Order 11, rule 1(1).

(ii) The plaintiffs failed to raise any good cause of action or a serious issue to be tried.

(iii) There had been material non-disclosure when the plaintiffs sought leave under that rule.

Failure to Fall Within Ambit of Order 11, rule 1(1)

64.  At the ex parte stage, the Lucky Companies relied on Order 11, rule 1(1)(c), (d)(i), (f) and (p). 

65.  Sub-rule 1(1)(c) requires the claim to be brought against a person duly served within or out of the jurisdiction and the person out of the jurisdiction is a necessary or proper party thereto.  It is a precondition of leave to serve out of the jurisdiction under this provision that another defendant has already been served within or out of the jurisdiction: Hong Kong Civil Procedure, 2011, para.11/1/17B.  At the time of the ex parte application, no party was served.  Mr. Wu does not appear to insist on reliance on this rule in his submission.

66.  Sub-rule 1(1)(d)(i) requires the claim to be brought to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or obtain other relief in respect of a breach of contract which was made within the jurisdiction.  There is no cause of action based on contract here.  A claim against a director of a company based merely upon the fact of his appointment in the absence of a specific contract of employment did not fall within the ambit of this sub-rule: Newtherapeutics Ltd. v. Katz.  [1991] Ch 26.   Mr. Wu does not insist on reliance on this sub-rule either.

67.  Sub-rule 1(1)(f) provides that “the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction.” The Lucky Companies rely on this rule against Ms Shi.  It is alleged that Ms Shi breached her fiduciary and equitable duties owed to the Lucky Companies.  Those were tortious acts which resulted in damage to the Lucky Companies, which are Hong Kong companies.  Further or alternatively, the Lucky Companies say that Ms Shi also breached her duty of care, skill and diligence owed to the Lucky Companies under common law. 

68.  A director’s fiduciary duty is described thus,

“As agents of the company, directors stand in a fiduciary relationship to the company, which requires the directors to act honestly, in good faith and in the best interests of the company as a whole. In addition, in discharging their duties towards the company, the directors must exercise reasonable care and diligence and exhibit a degree of skill which may reasonably be expected from a person of his knowledge and experience.”

Re City Equitable Fire Insurance Co. Ltd. [1925] Ch 407, 427; Halsbury’s Laws of Hong Kong, Vol.6(1) (2005 Reissue), para. 95.0649.

69.  However, a claim based on equitable restitutionary remedies for breach of trust or fiduciary duty is not a claim in tort and must be brought within some other paragraph.: ICS Technology Ltd. V. Guerin [1992] 2 Lloyd’s Rep 430, at 432; Dicey, Morris & Collins, the Conflict of Laws, 14 ed, 2006, para 11-220.  In addition, Mr. Wu is unable to point to an act committed by this director within Hong Kong. Though books and accounts were in kept Hong Kong as he submits, those were not “acts” committed in Hong Kong.  Damage was also not sustained in Hong Kong. This sub-rule therefore does not assist the Lucky Companies.

70.  Sub-rule 1(1)(p) provides that “the claim is brought for money had and received or for an account or other relief against the defendant as constructive trustee, and the defendant’s alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction.”  The act said to result in D1 being called upon for an account was committed by a director of the Hong Kong company, i.e. D3.  Mr. Wu submits that though Ms Shi was a Mainlander, she had an office in Hong Kong and the company’s alter ego carried on business in Hong Kong.  Therefore, the act of transfer of money was in a way executed in Hong Kong.  I disagree.  The alleged acts causing the damage were not committed in Hong Kong.  The remittances from Jinfu’s accounts to GZCK’s account took place in Guangzhou.  The alleged absence of proper authority or instructions was not an “act”, let alone an act of the 1^st or 3^rd defendant. This sub-rule does not assist the plaintiffs.

Failure to Prove a Serious Issue to Be Tried

71.  Once satisfied that the plaintiff’s claims ought to be struck out, there is no more serious issue to be tried.

High Court of Hong Kong not the Natural and Proper Forum

72.  All the relevant facts giving rise to the causes of action took place in Guangzhou.  Most of the witnesses are based in Guangzhou or Tianjin.  The only connection to Hong Kong is the fact that the Lucky Companies are Hong Kong companies and Ms Shi was their director.  Those are not sufficient to show that the High Court of Hong Kong is the natural and proper forum. 

Material Non-Disclosure

73.  As to material non-disclosure,

“In obtaining leave, full disclosure is necessary. But while an applicant must disclose anything which casts doubt on his case, it is unreasonable to expect him to anticipate all the arguments or points which might be raised against his case.

The test used is whether the court was fully informed of all the facts that are relevant to the weighing operation which the court has to make in deciding the ex parte application, applied in the context of O.11. … The court judges what is material. The fact that the applicant took a different view is no answer to an allegation of non-disclosure.

Where there is a possibility that a foreign jurisdiction may prevail over the dispute that must be brought to the court’s attention …

Overlapping (pending or prospective) foreign proceedings between the same parties are likely to be a particularly relevant matter, the non disclosure of which may of itself lead to the grant of leave being set aside.

In service out matters, … if a party becomes aware of further material matters after the grant of leave, it is obliged to inform the court. …

Serious material non disclosure at the ex parte stage may lead to the order granting leave being set aside with costs against the plaintiff.”

Hong Kong Civil Procedure 2011, para 11/4/3AB and 11/4/4.

74.  There was serious and material non-disclosure on the part of the Lucky Companies when applying for leave to serve out of jurisdiction:

(i) They refused or failed to inform the Court that all the relevant acts said to constitute the causes of action in this case all took place in Guangzhou.

(ii) They did not exhibit the Debt Restructuring Agreement or the 1^st and 2^nd Supplemental Agreements.

(iii) They failed to set out the relevant terms of the Settlement Deed, in particular Clauses 17.1(a) and 18, and that the Lucky Companies were in breach of the same in continuing the present action. In fact, Mr. Ho expressly affirmed that the present action did not come under the Settlement Deed.

(iv) They failed to inform the Court that their “associates” (e.g. Inter Ease and Golden Tree) had advanced radically inconsistent claims in the settled arbitrations or legal actions.

(v) They failed to mention the fact that the causes of action in the present case were or should have been raised in the compromised actions and arbitrations like the Lucky Companies arbitration, the Inter Ease arbitration and HCA 1720 of 2006.

(vi) They did not mention the fact that the misappropriation of the foreign side’s interests in the Project Companies to Glorious Sun under the 2004 Assignment had been ratified by the Lucky Companies. Therefore, they were not entitled to any sum from the sale of such interest and could not have suffered any loss.

75.  These are most material matters for the Court to decide whether or not to assume jurisdiction.  In failing to make full and frank disclosure, the plaintiffs have caused the learned Masters to exercise their discretion to grant leave to and to serve the writ out of jurisdiction and extend the validity of the writ for 3 times. But for such leave, the limitation period would have expired for more than 3 years.  Leave to serve the writ out of jurisdiction should be set aside even on the ground of failure to make full and frank disclosure alone.

76.  For any of the reasons put forth by Mr. Mak, service of the writ out of jurisdiction ought to be set aside.

COSTS

77.  I find the plaintiffs’ conduct to be most deplorable.  They lacked candour at the negotiation table.  They showed total disrespect to a full and final settlement. They were selective in pleading facts in the statement of claim.  They showed blatant disregard of their duty of full and frank disclosure at the ex parte stage.  They simply abused the court’s process in trying to relitigate bogus issues already settled.  Their whole conduct was to vex the defendants who, on the face of the Settlement Deed, were not parties thereto. 

78.  Such conduct calls for sanction in terms of costs.  Clauses 17.1(g) and 18.6 of the Settlement Deed required Mr. Ho & Golden Tree (but not the Lucky Companies) to indemnify the other parties to the Settlement Deed to ensure that there is no unnecessary litigation after the settlement.  By the same token, the Lucky Companies who so flagrantly breached the Settlement Deed should provide an indemnity as to costs.

79.  I therefore order, on a nisi basis, that costs should be to the 1^st and 3^rd defendants and the intervener on indemnity basis, to be made absolute 14 days after the handing down of this decision.

CONCLUSION

80.  I give leave for the intervener to be joined for the purposes stated in its summons.  I set aside service of the writ out of jurisdiction, strike out the statement of claim and dismiss the action.   I make an order nisi that costs be to the defendants and Kwong Ian on indemnity basis, to be made absolute 14 days after the handing down of this judgment.

81.  The defendants and intervener shall file and serve their costs statement by 21 January 2011.  The plaintiffs shall file and serve their grounds in opposition by 27 January 2011.  Summary assessment of costs shall be done on 28 January 2011 on the papers; no attendance is required.

82.  I thank counsel for their able assistance.