Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd Another

Judgment Cited in Precedent Map Related
Judgment Date28 February 2013
Judgement NumberHCMP2693/2012
CourtHigh Court (Hong Kong)

HCMP 241/2012, HCMP 407/2012 AND HCMP 2693/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS. 241, 407 AND
2693 OF 2012

(ON INTENDED APPEALS FROM HCA NO. 1934 OF 2011)

________________________

BETWEEN

FALCON PRIVATE BANK LTDPlaintiff
and
BORRY BERNARD EDOUARD CHARLES LIMITED1st Defendant
BORRY BERNARD EDOUARD CHARLES2nd Defendant

________________________

Before: Hon Fok and Barma JJA in Court

Date of Hearing: 28 February 2013

Date of Judgment: 28 February 2013

________________________

J U D G M E N T

________________________

Hon Fok JA (giving the judgment of the Court):

The procedural history

1. There are three applications for leave to appeal before the Court today. The first in time is that in HCMP 241/2012 seeking leave to appeal against the order of To J dated 27 January 2012. The second in time is that in HCMP 407/2012 seeking leave to appeal against the order of To J dated 22 February 2012.

2. Both those orders were made by To J in the underlying action, HCA 1934/2011. The background to that action is very briefly described in paragraphs 7 to 12 of the Reasons for Decision of Yuen JA dated 21 February 2013, to which we shall return in a moment. On the commencement of the action, the plaintiff obtained an ex parte injunction order and disclosure orders against the defendants. Aspects of those orders were contested by the defendants, giving rise to the orders of To J sought to be appealed. To J refused leave to appeal, hence the applications to this Court for leave.

3. The first and second applications for leave to appeal would ordinarily have been determined long before today but for one reason. That reason was that, at the time those applications were made, the defendants had taken out a number of other interlocutory applications in the main action, including a summons to strike out the action and to discharge the ex parte injunction order.

4. If those summonses were successful, it would mean that the orders of To J of 27 January 2012 and 22 February 2012 would simply fall away. It was presumably for this reason that Tang VP gave directions that the applications for leave to appeal against those orders be heard at the same time and that they be dealt with after the strike out and discharge summonses that were then pending.

5. In addition to the strike out and discharge summonses, and prior to those applications being heard, the defendants applied by summons for To J to recuse himself from hearing the strike out and discharge summonses.

6. So it was that in May and June 2012, various interlocutory applications, including the recusal summons and the strike out and discharge summonses, were heard by To J. On 7 June 2012, To J gave his decision refusing to recuse himself from hearing the strike out and discharge summonses and also dismissing the latter summonses. His Reasons for Decision were handed down on 9 July 2012.

7. That has given rise to the third application before the Court today, namely the application in HCMP 2693/2012 for leave to appeal against the various orders of To J dated 7 June 2012. To J refused leave to appeal and, hence, the defendants now apply to this Court for leave.

8. The leave application in HCMP 2693/2012 has already been determined by a single Justice of Appeal, namely Yuen JA, who, on 1 February 2013, refused leave on the papers and, on 21 February 2013, gave her Reasons for Decision, to which we have referred. The defendants have renewed that application for leave before this Court, as they are entitled to do under O.59 r.2C(1) and (2).

9. Directions were given that at the hearing today, which had been fixed for the hearing of the first and second leave applications, this Court would also hear the renewed third leave application.

10. That...

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