LAM YUK HON v. KOOK TAI WAI

HCCW 1138/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO. 1138 OF 1999

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D E C I S I O N

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Background

1.  This is the Petitioner’s application for an order that the Respondent do buy out the Petitioner’s shareholdings, namely the Petitioner’s 4,500 shares in Ruby Art Jewellery Company Limited (“Ruby Art”) at $6,191,499, pursuant to the terms of a Tomlin Order made on 10 January 2003.

2.  The brief history to this application is as follows.  The Petitioner Mr Lam Yuk Hon (“Mr Lam”) and the Respondent Mr Kook Tai Wai (“Mr Kook”) are the sole shareholders of Ruby Art.  In 1999, Mr Lam presented a petition against Mr Kook, pursuant to sections 168A and 177(1)(f) of the Companies Ordinance (Cap 32), in respect of the alleged exclusion by Mr Kook of Mr Lam from involvement in the business of Ruby Art since about 1999. 

3.  The matter proceeded in the normal way and came on for trial before Madam Recorder Leong, SC in January 2003.  On the first day of trial, the parties reached a settlement.  The proceedings were then settled by way of a Tomlin Order which provided for a stay of the petition, save for the purpose of carrying into effect the agreed terms which were annexed to the order.  The terms contained in the annex provided, in effect, for the appointment of an independent auditor (“Independent Auditor”) to carry out what was described as an audit of the company’s financial affairs for the period from the last available management accounts dated 31 March 1998 to 31 December 2002, the date at which it was agreed that Ruby Art should be valued for the purpose of what was effectively an agreed buy out by Mr Kook of Mr Lam’s 45% interest in Ruby Art.

4.  The parties had been unable to agree on the appointment of the Independent Auditor and sought directions from Barma J.  In March 2004, Barma J made an order appointing PricewaterhouseCoopers (“PwC”) nominated by Mr Kook as the Independent Auditor.  However, PwC was unable to produce a valuation of Ruby Art as at 31 December 2002 in the timeframe originally envisaged of three months.  This was because, firstly, PwC did not consider it had sufficient information in order to enable it to carry out this task in the way that it had originally intended to go about it; and secondly, because the parties had been in arrears of payment of PwC’s fees since about May or June 2004.  On 15 April 2005, the parties again sought directions from Barma J.  Barma J thought it unnecessary to give further directions but focussed the parties’ minds on the steps that need to be taken to take the matter forward.  But it took another two years and ten months before PwC was able to present a final report (“Report”) for the valuation of Ruby Art on 22 February 2008. 

5.  Under paragraph 7.5 of the Report, PwC assessed the valuation of Ruby Art as at 31 December 2002 to be $13,986,694.  Accordingly, Mr Lam’s 45% shareholdings was worth $6,294,012.  On the other hand, Mr Lam owed Ruby Art $7,921 and a company by the name of Excellent Perfect, which was jointly and equally owned by the spouses of Mr Lam and Mr Kook, was indebted to Ruby Art in the amount of $954,022.  After offsetting Mr Lam’s debt and Mrs Lam’s share of her liability in Excellent Perfect to Ruby Art as if it was Mr Lam’s liability, the net amount Mr Kook should pay Mr Lam for his 45% shareholdings in Ruby Art would be $6,191,499.  Mr Kook did not buy out Mr Lam’s 45% shareholdings within 28 days of the Report pursuant to the terms annexed to the Tomlin Order.  Hence, Mr Lam made the present application.  

6.  On 16 April 2008, the first returnable date of the application, Mr Wong of Messrs Cheung, Chan & Chung (“CCC”), solicitors for Mr Kook, submitted to Barma J that Mr Kook wished to challenge the Report as being utterly wrong in accounting principle and on the evidence.  He sought leave to file an affirmation within 21 days to challenge the valuation in the Report.  Despite objections from Mr Chan of Messrs Chan, Wong & Lam (“CWL”), solicitors for Mr Lam, Barma J acceded to the request, granted leave to Mr Kook to file his 8^th Affirmation within 21 days and leave to Mr Lam to file affirmation in reply within 7 days thereafter, ordered no further evidence may be filed without leave of the Court and adjourned the application to 5 June 2008.  The adjourned application was then set down for hearing before me.  But it was not until 2:30 pm on 4 June 2008 that Mr Kook filed his 93-page 8^th Affirmation together with five box files of exhibits.

7.  Mr Wong now seeks leave to file the 8^th Affirmation of Mr Kook out of time.  Mr Chan opposed.  Two considerations are relevant.  Firstly, Mr Kook must offer a reasonable explanation for the delay in filing his 8^th Affirmation.  Secondly, the contents of his 8^th Affirmation must be relevant to the application now before me.  If upon consideration of these two matters it is appropriate to grant leave, I shall give further directions for the hearing of Mr Lam’s application for buying out.  Otherwise, I shall dispose of Mr Lam’s application on the basis of the merits now before me.

Mr Kook’s explanations for the delay in filing his 8^th Affirmation

8.  The time for filing Mr Kook’s 8^th Affirmation expired on 7 May 2008.  The affirmation was filed badly out of time.  No application for extension of time had been sought prior to the expiry of the time for filing the affirmation.  Mr Wong frankly admits that an explanation for the delay was owed.  In his 8^th Affirmation, Mr Kook explained that the documents involved in the challenge were substantial and enormous.  He said that all documents had been given to PwC and he had to dig out copies which he still kept for verification purposes.  Substantial time was spent in analyzing the documents almost item by item with the Report and in preparing his 8^th Affirmation.  Mr Wong added that it took some time for PwC to provide the five box files of documents for Mr Kook to prepare his 8^th Affirmation.  A further reason advanced by Mr Kook was that he was absent from Hong Kong on business from 27 May to 2 June 2008 and he was only able to finally review and make his 8^th Affirmation on 3 June 2008.  He said that he was over-optimistic and under-estimated the volume of work involved.  I am not impressed by his explanation for two reasons.  Firstly, Mr Kook did not wake up on the morning of 16 April 2008 to find himself thrust with the Report and ordered to file affirmation in opposition.  He had about two months since the release of the Report or more than six months since the issue of the second draft report to formulate his objections.  Secondly, when Mr Kook’s explanation is considered in that light, his explanation for the time taken in the preparation of his 8^th Affirmation is neither credible nor reasonable.  All the circumstances showed that Mr Kook was delaying the progress of the valuation and the buy out of Mr Lam’s 45% shareholdings in Ruby Art. 

9.  To make good my first observation, I shall first turn to the events leading to the finalisation of the Report.  There was a delay of thirteen months in the preparation of the Report between the appointment of PwC in March 2004 and the directions hearing before Barma J on 15 April 2005, which at least was partly attributable to failure of the parties to pay PwC’s fees.  I do not wish to determine who was responsible for that delay.  But a delay of a similar nature recurred in October 2007 towards the final stage of the preparation of the Report, which was undoubtedly attributable to Mr Kook’s dilatory conduct.  On 5 October 2007, PwC requested the parties for a new cheque book from Citibank NA for the purpose of issuing a cheque to settle PwC’s fees.  On 1 November 2007, PwC forwarded a cheque book re-order form to CWL for signature by Mr Lam.  Mr Lam signed the form which was then forwarded to CCC on the following day for signature by Mr Kook.  It took CCC ten days until 12 November 2007 to reply that Mr Kook was out of Hong Kong.  It then took CCC another five weeks to inform CWL on 20 December 2007 that Mr Kook had returned to Hong Kong on 16 December 2007.  Mr Kook then took another nineteen days to sign and forward the form to PwC on 4 January 2008.  Payment of PwC’s fees was a precondition for the release of the Report.  If Mr Kook was going to be out of Hong Kong for such a long period of time, he or his solicitors should have arranged for the form to be delivered to him overseas and to be returned to PwC by courier.  The further delay of nineteen days for signing the form since his return to Hong Kong speaks for itself.  Mr Kook was never serious in proceeding with the valuation of Ruby Art and was happy to let the process take as long as he could delay it. 

10.  The first draft report was issued on or about 23 January 2007.  According to Mr Kook’s 7^th Affirmation, he discovered numerous substantial mistakes.  On 2 February 2007, Mr Kook and his solicitor had a meeting with the handling staff of PwC during which they presented a written representation.  Mr Kook had all the opportunity to present his views and comments on the first draft report and he did so.

11.  PwC must have considered the comments of Mr Kook and incorporated those which it considered appropriate and rejected those which it thought inappropriate.  PwC must have done the same in respect of Mr Lam’s comments.  On 5 October 2007, PwC issued the second draft report to the parties’ solicitors.  PwC invited further response from the parties by 2 November 2007.  PwC wrote:

“If you believe there is further information that needs to be taken into consideration before finalising the valuation report, we would be pleased to meet with you and your respective clients to discuss the further information.  In such case, we would appreciate if you would inform and provide us with such information by 2 November 2007.”

On 2 November 2007, CWL forwarded Mr Lam’s comments on the second draft report to PwC with a copy to CCC.  Mr Kook and CCC did not respond to PwC’s invitation for comments or Mr Lam’s comments.  It was alleged by CCC that Mr Kook was out of Hong Kong, but no documentary evidence has been filed in support of that allegation.  While CCC gave excuses in relation to the signing of the cheque book order form, they were totally silent about PwC’s request for comments on the second draft report.  I have no reason to doubt that PwC had sent the second draft report to CCC or that CWL had sent a copy of Mr Lam’s comments to CCC.

12.  On 20 December 2007 when CCC informed PwC that they would arrange for Mr Kook to sign the cheque book re-order form, they purported, for the first time and well past the time limit set by PwC, to attend to PwC’s request for comments on the second draft report.  They requested for a copy of Mr Lam’s comments.  PwC responded promptly on the following day by sending CCC a copy of Mr Lam’s comments.  PwC also pointed out to CCC that they should have received a copy of Mr Lam’s comments under the cover of CWL’s letter dated 2 November 2007.  CCC did not retort.  But instead, on 4 January 2008, i.e. after two weeks, CCC wrote back to PwC and said that they had forwarded the second draft report and Mr Lam’s comments to Mr Kook for perusal and consideration, and they would revert to PwC as soon as possible. 

13.  Pausing here, I must say that Mr Kook’s as well as CCC’s attitude towards finalisation of the second draft report was less than lukewarm and unenthusiastic.  There was a total wanton disregard by Mr Kook of the time limit set by PwC.  CCC must have received the second draft report from PwC on 5 October 2007 and must be aware of the need to comment by 2 November 2007.  Even if Mr Kook were out of Hong Kong, that does not give him or CCC any excuse not to attend to the matter or to ask for extension of time.  But it was not until 20 December 2007, allegedly four days after Mr Kook had returned to Hong Kong, that CCC wrote to PwC to ask for a copy of Mr Lam’s comments.  CCC did not ask for a copy of the second draft report.  Obviously, CCC had already received the second draft report but chose to sit on it and to disregard the time limit for filing their comments.  Despite that the time for filing their comments had lapsed by a wide margin, it took CCC yet another two weeks merely to forward Mr Lam’s comments to Mr Kook for perusal.  Even assuming that Mr Kook was out of Hong Kong, no competent or reasonable solicitor knowing of the need for his client to respond by 2 November 2007 would have done nothing to bring the second draft report to his client’s attention or to add to the delay by withholding Mr Lam’s comments for another two weeks.  Mr Kook’s dilatory conduct showed that he was deliberately delaying the finalisation of the Report.  I hate to add that Mr Kook was aided and abetted in such dilatory conduct by those legally representing him.

14.  What Mr Kook promised to do as soon as possible in fact took him almost a month.  On 30 January 2008, CCC wrote to PwC to request for a meeting to discuss the second draft report.  By then, it was three months after the time for making comments had expired.  CWL, of course, objected.  On 4 February 2008, CCC replied, complaining for the first time that CWL had not given CCC a copy of Mr Lam’s comments.  Even if that were true, that does not relieve Mr Kook of his obligation to furnish his own comments by 2 November 2007.  Given the dilatory conduct in which CCC handled the second draft report and in particular the lateness in which the complaint was made, I do not accept CCC’s complaint of not having received Mr Lam’s comments as genuine.  CWL replied reiterating their objection but left it to PwC to decide whether to have any discussion with Mr Kook.  On 5 February 2008, PwC replied that they were not inclined to have further meeting with Mr Kook but invited Mr Kook to provide more information about what he wanted to discuss.  They wrote:

“We are not inclined to have further meeting to discuss the Valuation Report as we have already offered two opportunities to receive and comment on drafts of the report.  However, if Mr Kook is able to provide more information about what he would like to discuss, we are happy to consider your request further.”

Mr Kook did not respond.  To make sure that they would have taken all relevant matters into consideration, PwC wrote to CCC again on 20 February 2008 to invite Mr Kook to submit the information which he wished to discuss.  They wrote:

“We refer to our letter dated 5^th February 2008.  We would be grateful if you would provide any response by the end of this Friday 22^nd February 2008.  If we do not hear from you, we will proceed to issue the final report.

  If you have any questions, please do not hesitate to contact me on 2289 2489 or Stephenie Fung on 2289 2406.”

No response having been received from Mr Kook, PwC issued the final Report on 25 February 2008 to CWL and CCC.

15.  Mr Kook did not make any prompt objection to the valuation in the Report.  On 8 March and again on 20 March 2008, CWL wrote to CCC demanding performance of the terms annexed to the Tomlin Order, neither Mr Kook nor his solicitors responded.  What is particularly significant about Mr Kook’s conduct is the total absence of response to the Report since its release on 25 February 2008 until 16 April 2008, despite his very serious complaint about PwC’s refusal to hear his views on the second draft report and his obligation pursuant to the terms of the Tomlin Order to buy out Mr Lam’s 45% shareholdings on the basis of the valuation of Ruby Art given by PwC.  Mr Kook virtually did nothing to object to the valuation in the Report until the day before the return date of the Plaintiff’s Summons, when he filed his 7^th Affirmation.

16.  In his 7^th Affirmation, Mr Kook alleged that he discovered PwC had made various substantial mistakes in the second draft report and requested a meeting with PwC to give representation, but PwC refused.  He said in his affirmation:

“5.  PwC issued the 2^nd draft valuation report on (“the 2^nd draft”) on or about 5 October 2007.  I have reviewed the 2^nd draft and found that the independent auditors have still made various substantial mistakes in the 2^nd draft, which mistakes shall drastically distort the valuation of the Company.

 6.  My solicitors have informed PwC through correspondences of my intention to meet them again to give my representation towards the 2^nd draft.  However, PwC has refused to do so.  It is now shown and produced to me marked exhibits “DK-40” copies of the correspondences exchanged between my solicitor and PwC in respect of the 2^nd draft.”

There was much disingenuity on the part of those who drafted this affirmation for Mr Kook.  What was said in the above two passages was not incorrect.  But what was untold makes what was told utterly misleading.  Firstly, Mr Kook did not disclose the time limit set by PwC for filing his comments on the second draft report and that the time for filing comments had long expired by almost three months when CCC first sought a meeting with PwC.  Secondly, Mr Kook portraited PwC as utterly irresponsible and unreasonable in being deaf to his representations and arbitrary in making the valuation.  But he did not exhibit PwC’s letters dated 5 and 20 February 2008 which would have shown that PwC had invited him twice for response though a meeting was declined.  Thirdly, Mr Kook did not disclose the fact that he did not make any representation despite the two invitations.

17.  Mr Kook’s 7^th Affirmation was utterly and deliberately misleading.  That casts real and serious doubts on the credibility of his explanation for the time taken in preparation of his 8^th Affirmation.  The truth is that Mr Kook wantonly disregarded the time limit for making comments and despite the further indulgence given by PwC he deliberately ignored PwC’s request twice to make written representations.  In the end, he delayed the finalisation of the Report by almost four months.  Mr Kook never told PwC what his complaints about the second draft report were.  This showed he had no substance at all in his complaint about PwC’s refusal to hold a meeting with him.  If he had any real grievance about the second draft report, he would not have failed to furnish his comments by 2 November 2007 or to respond to PwC’s two invitations for information.  Mr Kook’s dilatory conduct is not that of a person who had a genuine dispute about the valuation in the Report.  He has been persistently delaying the valuation.  The motive of his present challenge to PwC’s valuation is obviously for the purpose of further delaying the buy out of Mr Lam’s 45% shareholdings and to deprive him of the fruits of his nine years’ litigation.

18.  But even putting aside Mr Kook’s motive and his previous dilatory conduct, his explanation for the time taken in preparation of his 8^th Affirmation is inherently incredible and unreasonable.  As I have said, he was not thrust with the Report for the first time on 16 April 2008.  According to Mr Kook’s 7^th Affirmation, he discovered various substantial mistakes made by PwC in the second draft report.  A reasonable time when Mr Kook would have discovered those mistakes would have been about two weeks after the issue of the second draft report, i.e. by 19 October 2007.  On his allegation that he was out of Hong Kong and returned only on 16 December 2007, then he would have discovered the mistakes by the end of December 2007 or at the latest 30 January 2008 when his solicitors requested for a meeting with PwC.  If Mr Kook was sincere in his allegation that the second draft report contained various substantial mistakes and that he genuinely wanted to have a discussion with PwC, why did he ignore PwC’s two requests for representation.  Furthermore, if what Mr Kook alleged in his 7^th Affirmation is true, he must have by 30 January 2008 some good evidential basis for him to make the allegation about substantial mistakes in the Report.  This is totally inconsistent with his allegation that all the documents had been given to PwC, that it took him some time to recover the documents from PwC and that it took him more time to prepare his 8^th Affirmation.  However, Mr Kook never disclosed to PwC what the serious mistakes in the second draft report were.  He never disclosed in his 7^th Affirmation the nature of the alleged substantial mistakes in the Report.  This showed a total lack of credibility in his allegation about mistakes in the Report.  If the mistakes alleged in his 8^th Affirmation are similar to or based on the same mistakes in the second draft report as alleged in his 7^th Affirmation, then irrespective whether the mistakes are genuine, Mr Kook simply failed to explain why given the fact that he had knowledge of the substantial mistakes since 5 October 2007 and documents in support of that allegation, he was unable to prepare a reasonably comprehensive affirmation within 21 days.  If the mistakes alleged in his 8^th Affirmation are new mistakes different from those alleged in the second draft report, again irrespective whether the mistakes are genuine, Mr Kook also failed to explain why given the fact that he had knowledge about the substantial mistakes since 30 January 2008 at the latest and some documents in support of that allegation, he was unable to prepare his 8^th Affirmation within 21 days setting out, at least, his main criticisms of the Report if not all the details. 

19.  Had Mr Kook been sincere in his request for more time to prepare his 8^th Affirmation, he should have made an application for extension of time before 7 May 2008, instead of lodging his 93-page affirmation and five box files of exhibits on the late afternoon before the return date of the present application.  His application for leave to file his 8^th Affirmation out of time bears all the hallmarks of deliberate delay.  This is particularly so in the light of his history of dilatory conduct.  Thus, I reject Mr Kook’s explanation for the delay in filing his 8^th Affirmation. 

Relevancy of Mr Kook’s 8^th Affirmation

20.  As for the contents of Mr Kook’s 8^th Affirmation, Mr Wong said that the Report is utterly wrong in accounting principles and in the evidence.  He submits that Mr Kook is challenging the correctness of the Report and is not challenging PwC as having departed from the instructions given to them in any material respect.  Mr Chan submits that this is not what Mr Kook is permitted to do under paragraph 7 of the annex to the Tomlin Order which provided that the valuation of PwC shall be binding and conclusive on the parties. 

21.  Mr Wong argues that the Court should ask itself whether it is in the interest of justice to enforce a report which is manifestly wrong.  That is probably correct as a general proposition.  But it has no application where the parties have agreed to delegate their decision to the expert and be bound by the expert’s decision.  This is a well established principle based on contract.  Sir John Strange MR in Belchier v Reynolds (1754) 3 Keny 87 said at 91:

“Whatever be the real value is not now to be considered, for the parties made Harris their judge on that point; they thought proper to confide in his judgment and skill and must abide by it, unless they could have made it plainly appear that he had been guilty of some gross fraud or partiality.”

22.  An expanded statement of this principle is to be found in the following passage of Lord Denning MR in Campbell v Edwards [1976] 1 WLR 403 at 407:

 “It is simply the law of contract.  If two persons agree that the price of property should be fixed by a valuer on whom they agree, and he gives that valuation honestly and in good faith, they are bound by it.  Even if he has made a mistake they are still bound by it.  The reason is because they have agreed to be bound by it. If there were fraud or collusion, of course, it would be very different.  Fraud or collusion unravels everything.”

This statement as a statement of principle was endorsed by Megaw LJ and all other members of the English Court of Appeal in Baber v Kenwood Manufacturing Co Ltd [1978] 1 Lloyd’s Rep 175.

23.  A more modern formulation of this principle by the English Court of Appeal is to be found in the headnote of Jones v Sherwood Computer Services Plc [1992] 1 WLR 277 which reads:

“… where parties had agreed to be bound by the report of an expert, the report, whether or not it contained reasons for conclusion in it, could not be challenged in the courts on the ground that mistakes had been made in its preparation unless it could be shown that the expert had departed from the instructions given to him in a material respect; ...”

Dhillon LJ said at 288:

“If the parties to an agreement have referred a matter which is within the expertise of the accountancy profession to accountants to determine, and have agreed that the determination of the accountants is to be conclusive, final and binding for all purposes, and the chosen accountants have made their determination, it does not seem appropriate that the court should rush in to substitute its own opinion, with the assistance of further accountants’ evidence, for the determination of the chosen accountants.”

24.  This principle was followed by Le Pichon J, as she then was, in Dlugash v Mayers [1997] 2 HKC 814 and by Kwan J in Re Golden Bright Limited, HCMP 6472/2001.  In Lau Yee Ching and Wong Tak Kwong and Others, CACV 172/2006, the Hong Kong Court of Appeal had the opportunity to consider the same issue.  Tang VP adopted the principle in Jones v Sherwood Computer Services Plc and held that it is settled law that where the parties have agreed to be bound by an expert’s report, the report could not be challenged on the ground that mistakes had been made unless it could be shown that the expert had departed from the instructions given to him in a material respects.  I consider I am bound by the Court of Appeal’s decision in Lau Yee Ching and Wong Tak Kwong and Others. 

25.  Mr Kook is not seeking to challenge PwC’s valuation in the Report on the ground of PwC’s departure from instructions.  He is only seeking to challenge its correctness.  He makes it very plain in paragraph 4 of his 8^th Affirmation that the purpose of the affirmation is to oppose the valuation of Ruby Art in the Report.  He concludes in paragraph 155 of his 8^th Affirmation that for that purpose he had to examine all the documents, all the raw materials, like ledgers, invoices, etc which had been delivered and kept by PwC and that he had to analyze those raw materials almost item by item against the Report.  Mr Wong reinforced Mr Kook’s case by saying that Mr Kook had to engage a financial analyst to aid in the challenge and in the preparation of his 8^th Affirmation.  Obviously, Mr Kook intended a full scale review of the Report.  This is precisely what he is prohibited from doing under the above principle.  The dicta I quoted from the various cases cited above are all applicable.  Mr Kook and Mr Lam made PwC their judge of the value of Ruby Art.  They thought it proper to confide in PwC’s judgment and skill and must abide by it.  Even if PwC might have made some mistakes, they are still bound by the valuation of PwC because they have agreed to be bound by it pursuant to the terms annexed to the Tomlin Order.  It is not permissible for Mr Kook now to engage his own expert to raise an item by item review of the Report.  There is no allegation that PwC has departed from instructions.  There is no suggestion of fraud or collusion.  I have taken time to read Mr Kook’s 8^th Affirmation and compared it with the Report.  It contains nothing but a challenge on the correctness of the valuation of PwC.  It even seeks to dispute the valuation on the basis that it should be reduced by PwC’s cost in preparing the Report.  This is effectively an attempt to re-write the terms annexed to the Tomlin Order which provided that the cost of the Report shall be borne by Ruby Art and not by Mr Lam and Mr Kook.  As a matter of legal principle, it is not permissible for Mr Kook to seek to challenge the valuation of PwC by what he called an item to item review of the Report.  Even if PwC had been erroneous in some of its findings, it is inappropriate for this Court now to substitute its valuation for that of PwC. 

26.  Mr Wong argues that it is unjust to enforce PwC’s valuation which is wrong in accounting principle and on the evidence.  Putting aside the question whether PwC’s valuation was erroneous, there is no procedural unfairness or injustice in enforcing PwC’s valuation.  Mr Kook was given the first draft report on 23 January 2007.  He had the opportunity to make representation on the draft and he did by making a representation with his solicitors to PwC on 2 February 2007.  On 5 October 2007, he was given the second draft report through his solicitors and invited to comment by 2 November 2007.  The second draft report must have incorporated all his comments which PwC considered to be appropriate.  He gave no response.  He put up various excuses such as that he was out of Hong Kong and that he had never received Mr Lam’s comments.  I do not wish to repeat my observations about those lame excuses.  Anyway, four months after the time limit for making comments had lapsed, he was given the further indulgence of making representations, though not the luxury of a meeting with PwC.  He ignored two invitations by PwC to make representations.  If he had so much to complain about the mistakes of PwC as to launch an item by item analysis of the Report, he should have done so then.  But, he did not.  The inference is that he had adequately raised all his criticisms and that his allegations about mistakes were not genuine.  Even on his own allegation, he received the second draft report on 16 December 2007, though his solicitors must have received it as early as 5 October 2007.  If, as was said in his 7^th Affirmation, he discovered the substantial mistakes in the second draft report, he would not have waited until 30 January 2008 to request for a meeting with PwC, or refrained from responding to PwC’s two invitations to make representations between 5 and 20 February 2008 or remained silent upon receipt of the Report, or refrained from objecting to CWL’ request to buy out Mr Lam’s 45% shareholdings.  There is no unfairness in enforcing the valuation on the Report.  The alleged unfairness were all Mr Kook own creation.

27.  The parties reached agreement to stay the petition to wind up Ruby Art, which was made the subject matter of the Tomlin Order.  Mr Kook and Mr Lam agreed to jointly appoint an Independent Auditor to determine the net worth of Ruby Art as of 31 December 2002.  The bases of the determination were clearly set out under the terms annexed to the Tomlin Order.  Paragraph 7 of the annex states that the determination of the Independent Auditor shall be binding and conclusive on the parties.  It was on that basis that Mr Lam consented to have the petition against Ruby Art stayed.  It took PwC four years to complete the Report, with much of the delay attributable to Mr Kook’s dilatory conduct.  By now nine years have lapsed since the commencement of the petition.  Mr Lam was deprived of the right to wind up Ruby Art and the benefit of actualising the fruits of the winding up action in the meantime.  If the enforcement of the Tomlin Order is to be delayed by a further round of expert evidence and argument, Mr Lam would be seriously prejudiced. 

28.  In the circumstances, I am not satisfied that there was a reasonable explanation for the late filing of Mr Kook’s 8^th Affirmation.  In any event, as a matter of law, it is not permissible for Mr Kook to challenge the valuation of PwC.  As the sole purpose of Mr Kook’s 8^th Affirmation is to challenge the valuation of PwC, the contents of the 8^th Affirmation is irrelevant for the disposal of Mr Lam’s buy out application.  It is neither unfair nor unjust to enforce PwC’s valuation.  On the facts, this case is indistinguishable from Lau Yee Ching and Wong Tak Kwong and Others.  Accordingly, I refuse leave for Mr Kook to file his 8^th Affirmation out of time and order that the affirmation filed be expunged.

Conclusion

29.  This litigation has now run its course.  According to paragraph 7 of the annex to the Tomlin Order, PwC’s valuation shall be binding and conclusive on the parties.  There is no valid challenge to that valuation.  After adjusting for the debt owed by Mr Lam to Ruby Art and for his wife’s share of her liability in Excellent Perfect to Ruby Art, the amount due to Mr Lam for the sale of his 45% shareholdings in Ruby Art is $6,191,499.  In accordance with the terms annexed to the Tomlin Order, Mr Kook should have bought Mr Lam’s 45% shareholdings within 28 days of the Report, i.e. by 21 March 2008.  Therefore, I make the following order:

(1)         that leave to file Mr Kook’s 8^th Affirmation out of time is refused, Mr Kook’s 8^th Affirmation together with exhibits be expunged;

(2)         that Mr Kook do buy out Mr Lam’s 45% shareholdings in Ruby Art at $6,191,499 within 14 days from the date of this Order;

(3)         that Mr Kook do pay Mr Lam interest on the sum of $6,191,499 at judgment rate from 21 March 2008 until 14 days from the date of this Order or the date of completion of the sale and purchase of Mr Lam’s 45% shareholdings in Ruby Art whichever the earlier;

(4)         that in default of compliance with sub-paragraph (2), Mr Kook do pay Mr Lam interest on the aggregate sum in sub-paragraphs (2) and (3) above from the 15^th day after the date of this Order at judgment rate until payment; and

(5)         that Mr Kook do pay Mr Lam’s costs of this application, such costs are to be taxed if not agreed.