Judgement:
13. Having read the statement of claim, I was satisfied that as pleaded, the plaintiff has made out a case that Head Dragon and ANE had full notice and knowledge of A-Power’s indebtedness to the plaintiff, that when they entered into the Agreement they knew that A-Power was insolvent and that the Liaoning shares held via Head Dragon were A-Power’s only appreciable assets. The Agreement, made at a significant undervalue, was a disposition of property made with intent to defraud. Pursuant to section 60 of the Conveyancing and Property Ordinance, Cap 219, it is voidable at the instance of the plaintiff who is the party prejudiced.
14. Accordingly, I ordered that the Agreement be set aside on that basis with the following consequential relief:
i. An order compelling ANE to disclose to the plaintiff by affirmation, within 14 days from the date of judgment, whether it is still the legal and/or beneficial owner of the shares in Liaoning or any part thereof, and if the latter, to identify which part thereof.
ii. If ANE is still the legal and/or beneficial owner of the shares in Liaoning or any part thereof, an order compelling ANE to take all necessary and reasonable steps to reinstate and/or restore Head Dragon as the legal and beneficial owner of the said shares.
iii. If ANE had transferred the shares in Liaoning or any part thereof, an order compelling ANE to disclose to the plaintiff by affirmation, within 14 days from the date of judgment, the details of such transfer(s), to whom such transfer(s) were made and the consideration for which such transfer(s) were made, and disclose to the plaintiff all relevant documents pertaining to end evidencing such transfer(s).
iv. The plaintiff be at liberty to apply to the court for further and consequential directions to enable it to be informed of the present ownership, whereabouts and status of the shares in Liaoning and to enable steps to be taken to reinstate Head Dragon as the legal and beneficial owner of the said shares.
15. The plaintiff also sought damages against Head Dragon and ANE for inducing A-Power to breach its obligations under the guarantee. I was satisfied that both Head Dragon and ANE had the requisite knowledge and also the intention to procure the breach. The whole point of the Agreement was to create this situation whereby A-Power would not be able to have recourse to the Liaoning shares to discharge its indebtedness to the plaintiff under the guarantee. Accordingly, I also ordered that damages be assessed by a master.
(Doreen Le Pichon)
Deputy High Court Judge
Miss Kareena Teh (solicitor advocate), instructed by Dechert, for the plaintiff
The 2nd defendant, was not represented and did not appear
The 3rd defendant, was not represented and did not appear
AI
