PROSPERFIELD VENTURES LTD. v. TRIPOLE TRADING LTD. AND OTHERS

HCA005370/1993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Action No. A5370/1993

BETWEEN
PROSPERFIELD VENTURES LIMITED Plaintiff
AND
TRIPOLE TRADING LIMITED 1st Defendant
ZHENG LIE LIE 2nd Defendant
DING PENG 4th Defendant
NG HIU NAM Intended
5th Defendant

AND

1995, No CL-98

BETWEEN
PANCO INDUSTRIAL HOLDINGS LIMITED Plaintiff
AND
DING PENG
ZHENG LIE LIE
NG HIU NAM
DENG LIU GEN
CHINA PROJECTS LIMITED
KENREY FINANCE LIMITED
1st Defendant
2nd Defendant
3rd Defendant
4th Defendant
5th Defendant
6th Defendant

————–

Coram : Hon Mr Justice Findlay (in Chambers)

Date of hearing : 1 February 1996

Date of handing down of judgment : 5 February 1996

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J U D G M E N T

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Findlay, J.:

1. On 13 December 1995, the plaintiff served upon the 1st, 2nd and 4th defendants in the first action and the 1st, 2nd and 5th defendantsin the second action (the defendants) requests for further particulars. The defendants did not respond to this. On 22 December 1995,the plaintiff issued a summons seeking an order to compel the defendants to supply the particulars.

2. In Case A5370 of 1993, the particulars requested are as follows –

No. Statement of claim Defence Request

1

Para: 12 Certain consideration was grossly inadequate and completely illusory, so there was a total failure of consideration.

Para: 9 Denial that the consideration was inadequate as alleged or at all.

Particulars relied upon to support allegation that consideration adequate.

2 Para: 13 A certain board meeting was not properly convened because no notice was given to a director. Para: 10 Denial that the board meeting was not properly convened as alleged or at all. Particulars of allegation that meeting was properly convened.

3
4
5

Defendants have undertaken to answer these requests
6
7
9
Defendants have answered these requests

8

Para 12: As above

Para: 23 Even if the agreement has the effect and meaning alleged by the plaintiff, the plaintiff cannot challenge it because it receivedtotal and unreserved support and approval of all the shareholders at the material times.

Identify periods referred to as “material times”.

10 Para 12: As above Para: 23 Even if the agreement has the effect and meaning alleged by the plaintiff, the plaintiff cannot challenge it because it receivedtotal and unreserved support and approval of all the shareholders. Particulars of manner in which it alleged the agreement received total and unreserved support and approval of the shareholders.

3. Regarding request 1, Mr Lam assures me, and the plaintiff, that what the defendants meant to allege was that what was alleged bythe plaintiff to be the consideration was the consideration, without more, and that it was denied that this was inadequate.

4. As to request 2, the defence does not make it clear whether it is admitted that the director did not receive notice, but the meetingfor properly convened for reasons not pleaded, or that it is denied that the director did not receive notice. This should be madeclear by particulars.

5. Mr Lam agrees that the defendants should supply particulars of the “material times” as requested in request 8.

6. Regarding request 10, the allegation made is a very strange one. If there was a resolution of shareholders, one would have expectedthat to be pleaded. Apparently, the total, unreserved support and approval was given in some other way. I think the plaintiff isentitled to have more particulars of this odd plea.

7. In relation to Case CL-98 of 1995, the particulars requested are –

No.

Statement of claim

Defence

Request

1

Para 11: The effect and purpose of the agreement was to strip the plaintiff and its assets.

Para: 10 It does not follow that the agreement is liable to be rescinded.

What is relied upon to support this allegation.

2

This request has now been answered.

3

Para 11: As above Para: 10 The total and unreserved support allegation as before

The same request as before.

4
5

These requests have been answered by Mr Lam saying that the defendants would rely upon the time elapsed between the date of the agreementand the date of the action

6
7

No allegation. Para: 26 Nothing is to be construed as admitting that the action is brought with proper authority or that the causes of action areproperly constituted. Mr Lam has agreed that these allegations should be struck out as being meaningless and irrelevant.

8. Request 1 asks for particulars about the defendants allegation that, even if the effect and purpose alleged, it did not follow thatthe agreement was liable to rescinded or otherwise challenged. Mr Lam says that paragraph 11 of the defence is meant to allege thatit does not follow because the agreement supported and approved by the shareholders. This should have been made clear in the pleading.

9. Otherwise, there is nothing new here. What I have said earlier applies equally to this case.

10. The defendants are to supply the particulars as I have indicated within 14 days. The parts of the defence I have identified are struckout.

11. There seems no reason why the defendants should not pay the plaintiff’s costs in any event. I make an order nisi accordingly.

(J.K. Findlay)

Judge of the High Court

Representation:

Mr Martin Rogers, of Messrs Herbert Smith, for the plaintiffs.

Mr S.C. Lam, instructed by Messrs Wong Poon Chan Law, for the 1st, 2nd and 4th defendants in 1993, No A5370 and 1st, 2nd and 5th defendantsin 1995, No CL-98