ADDCHANCE LTD v. HEROJOY TRADING LTD

HCMP 2/2018
[2018] HKCFI 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2 OF 2018

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D E C I S I O N

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1.  There are two applications before me:

(i) an application for an interlocutory injunction to refrain the defendant from presenting etc any winding-up petition based on the alleged debt; and

(ii) an application for service of a concurrent originating summons.

2.  The defendant was absent, despite previous correspondence with its solicitors in HCA 64/2017, and despite service of all documents at the defendant’s address set out in the statutory demand.

3.  Out of an abundance of caution, and without going into details of the validity of the service, Mr Wong, for the plaintiff, agrees that this application should be proceeded on a “ex parte with notice basis”.

4.  I have read the bundle.  I have read Mr Wong’s submissions. Originally Mr Wong relied on two main grounds:

(i) that the plaintiff has a bona fide dispute on substantial grounds on the alleged debt; and

(ii) the recovery of the alleged debt has been time-barred.

5.  For the record, Mr Wong abandoned the limitation ground, on the basis that this now being an ex parte application, he was not 100% comfortable in respect of the full and frank disclosure duty (whether there has been any interim acknowledgment).

6.  In relation to the first main ground, principally for the reasons set out in Mr Wong’s submissions, I agree that this is an appropriate case for the order sought.  In particular:

(i) The alleged debt having been the contested subject matter in HCA 64/2017, there having been no attempted application for summary judgment, and there being no evidence of any change of circumstance, the sudden service of the statutory demand is at odds with the history of previous proceedings, to say the least.

(ii) The alleged debt was inconsistent with the internal account kept by the plaintiff.

(iii) The alleged debt was inconsistent with the Annual Report of the plaintiff for the year of 2010 (see pp 257, 261 and 291 of the hearing bundle).

(iv) The Audit Confirmation relied upon by the defendant was signed in circumstances which have not been explained by the defendant, and the correction pleaded by Mr Sung at para 12(3) of his Reply lacks particulars.

7.  In the circumstances, I am satisfied that on the evidence, the plaintiff has discharged its onus of establishing the existence of a bona fide dispute on substantial grounds.

8.  I grant the interlocutory order/injunction as requested until further order.

9.  I am also satisfied that a case has been made out for the service of a concurrent originating summons.  Leave required is granted.

10.  Costs reserved.