IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 452 OF 2008
———————- (By Original Action) ———————-
(By Original Action)
Before : Hon Yam J in Chambers
Date of Hearing : 18 December 2009
Date of Decision : 18 December 2009
D E C I S I O N
1. I dismiss the application with costs to the defendants.
2. The application was premised on what the plaintiff by counterclaim said is true. All these allegations are issues to be tried. The court cannot, at this stage, stand on the allegations of the plaintiff. There are serious issues to be tried, and the 11th board of directors may be validly and lawfully constituted or not legally and validly constituted. This is an issue to be tried. I cannot grant an injunction on the ground that the 11th board of directors was unlawful or the resolution to bring them into office was invalid.
3. The application, as admitted by counsel for the 1st defendant, was made at the 11th hour. It has always been clear to the applicant (the plaintiff by counterclaim) that after two years, their term of office wouldexpire and the AGM would have to be held. In fact, the 1st defendant’s solicitors have warned the other side, by a letter on 16 November 2009, that should they bring an application for injunctionthey should make it expeditiously.
4. But then the summons was issued on the 11th houron 15 December, with a long affidavit served. This makes this whole situation very difficult for the other side, who have managedto put in an affidavit in reply. In fact, this letter of 16 November 2009 was not even exhibited, and I am afraid that this is borderingon material non-disclosure. The application has the effect of bringing the Association to a standstill situation. I do not findthe plaintiff would benefit at all by such an injunction.
5. In fact, as pointed out by Mr Kwong for the 1st defendant by counterclaim, the plaintiff by counterclaim will not suffer any loss or damage in the event this application for interlocutoryinjunction is refused. He has no personal interest in the outcome of the injunction he sought, and the counterclaim hearing is nota derivative action. On the contrary, if the injunction is granted, the Association would suffer serious and irreparable loss anddamage.
6. For these reasons I dismiss the application, with costs to all the defendants in the counterclaim.
Mr Alan Kwong, instructed by Messrs C.Y. Lam & Co., for the Plaintiff by Original Action and the 1st Defendant by Counterclaim
Ms Lorinda Lau, instructed by Messrs W.K. To & Co., for the 1st Defendant by Original Action and the Plaintiff by Counterclaim
Miss Veda Cheng of Messrs Kao, Lee & Yip, for the 2nd to 5th Defendants by Counterclaim