Natalie Ng

In a decision handed down by Wilson Chan J on 12 March 2024 in 𝘏𝘎 𝘗𝘳𝘰𝘱𝘦𝘳𝘵𝘺 𝘐𝘯𝘷𝘦𝘴𝘵𝘮𝘦𝘯𝘵 𝘏𝘒 𝘓𝘪𝘮𝘪𝘵𝘦𝘥 v 𝘊𝘩𝘦𝘯𝘨 𝘔𝘦𝘪 𝘏𝘰𝘭𝘥𝘪𝘯𝘨𝘴 𝘓𝘪𝘮𝘪𝘵𝘦𝘥 & 𝘖𝘳𝘴 [2024] HKCFI 750, the Court dismissed the plaintiff’s application for amendment of pleadings and joinder of the intended 4th defendant for a fraudulent conveyance claim. Importantly, whilst acknowledging that the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendants in the present proceedings, Wilson Chan J emphasized that joinder ought to be disallowed if the parties opposing establish that it is plain and obvious that the plaintiff has no case against the proposed defendant. He observed that, likewise, if the proposed amendments are bound to fail, no leave to amend should be granted. Read more at https://lnkd.in/gBGVEWMZ Jenkin Suen SC instructed by Deacons, acted for the Intended 4th Defendant. The full judgment of the Court of First Instance is accessible here: https://lnkd.in/gY9NJupU #DVC #DesVoeuxChambers #Casehighlight

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High Court Reviews Principles on Directors’ Remuneration In Ma King Huen v The Sincere Co, Ltd [2024] HKCFI 319, DHCJ Ashley Burns SC allowed the claims by the plaintiff (“P”) (founder of the Sincere Group) against the defendant (“D”) for unpaid director’s fees, wages and other emoluments. The judgment addresses a number of important principles concerning directors’ remuneration and the construction of articles of association. The dispute concerns whether P’s entitlement to remuneration under a letter of confirmation (“Letter”) is ultra vires and unenforceable. The Letter confirmed P’s appointment as Deputy Chairman and CEO and provided for P’s entitlement to salary and emoluments recommended by the Recommendation Committee (“RC”) from time to time. However, D’s articles of association envisage that the method of fixing directors’ remuneration would be determined at the annual general meeting. Reconciling conflicting English authorities, the Court held there is no general rule that there must be a wholesale implication of a company’s articles into a director’s service agreement. However, the Court accepted that the service agreement remains subject to and should be read with those provisions in the articles concerned with the appointment of directors, their terms of service, remuneration and powers and duties. The Court held that the Letter unambiguously shows that the RC’s recommendation, by itself and without more, gives P an entitlement to remuneration. This is also consistent with the power of D’s directors under the articles to delegate their remuneration-fixing power to committees. Accordingly, it was concluded that a subsequent board resolution passed by D, which purported to nullify the RC’s recommendation, would not affect P’s contractual entitlement to remuneration. The full judgment can be viewed here: https://lnkd.in/gi-4sEbU Anthony Chan SC and John Cheung, instructed by HFW (Holman Fenwick Willan), acted for the defendant.

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Court of Appeal explains law on notional add-back in ancillary relief proceedings In LCC v LTLA [2024] HKCA 406, the Court of Appeal clarified the law on the court’s jurisdiction to notionally add back wantonly and recklessly dissipated sums into a matrimonial pot. The judgment concerns an appeal from an ancillary relief judgment handed down on 24 June 2022 by Au-Yeung J (“Judge”), where the Husband (“H”) was ordered to pay the Wife (“W”) a lump sum of HK$292m. At trial, W said H incurred around HK$96.59m in gambling losses (“Gambling Losses”) after parties separated. W sought to have those Gambling Losses notionally added back into the matrimonial pot on grounds that H had wantonly and recklessly dissipated them. H said the Gambling Losses should not be added back because (i) W condoned his gambling; (ii) he only suffered HK$29.687m in gambling losses, not HK$96.59m; and (iii) in any event, HK$24,039,689 should be deducted from the Gambling Losses, because that amount was spent on various items, not lost to gambling. The Judge found that H’s evidence on the Gambling Losses was particularly unreliable, and rejected it. Her Ladyship went on to add back the Gambling Losses to the pot. H appealed. His appeal was primarily against the Judge’s decision to add back the Gambling Losses. Allowing the appeal, the Court of Appeal held that notional add-backs must be cautiously made, and an amount can only be notionally added back if there is clear evidence that it has been dissipated. There was no clear evidence that there had been wanton and reckless dissipation of the Gambling Losses by H. The full judgment can be viewed here: https://lnkd.in/d-iJcr9F Bernard Man SC and Cristian Tsang, instructed by Chaine Chow & Barbara Hung, acted for the Petitioner. Theresa Chow also acted for the Respondent Husband in the proceedings below.

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The Limitation Act 1953 (“Act”) is often discussed regarding the time limit imposed for civil claims to commence. In our previous article, we discussed the Federal Court decision of Julian Chong Sook Keok & Anor v Lee Kim Noor & Anor [Civil Appeal] (No. 02(f)-63-10/2021(P)). Recently, the Court of Appeal had occasion to consider a different aspect of the computation of the limitation period in Bongsor Bina Sdn Bhd v SH Builders & Marketing Sdn Bhd [Civil Appeal] (No. W-02(C)(A)-2315-12/2022). This article shall discuss the decision of the Court of Appeal in determining whether the computation of the limitation period is stopped at the point when an action is first filed at Court but is stayed under Section 10 of the Arbitration Act 2005 (“AA 2005”) or shall the limitation clock only be stopped when the required arbitration proceedings are subsequently commenced. #LAWLens #court #arbitration Read more: https://lnkd.in/dbqPpRtU

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Hong Kong Litigation & Dispute Resolution partner Vincent Law contributed to the Hong Kong chapter of ‘Lexology Panoramic Gaming 2024’ which is now available online. This chapter provides a guideline and well-rounded insights on the latest legal rules, rights and issues concerning gaming in Hong Kong. Read the full chapter at: https://lnkd.in/gZUBG8vZ (subscription only) #Gaming #GamblingOrdinance #HongKong

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Guidance on stays of bankruptcy petitions pending appeal In Re Lau Wang Chi Barry [2024] HKCA 490, the Court of Appeal addressed the important question of whether and the extent to which the bankruptcy court may look behind a judgment debt. A bankruptcy petition was presented by the petitioners against the debtor based on a judgment debt. The debtor brought an appeal against the judgment debt and made two Ladd v Marshall applications to adduce new evidence on appeal. At the first Monday morning hearing of the petition, the debtor sought to stay the bankruptcy petition pending his appeal against the judgment debt. However, the judge ruled that, since judgment was entered some 19 months ago, it would not "go behind” the judgment and would only consider granting an adjournment if the debtor was to provide security for the judgment debt. On appeal, the Court of Appeal set aside the judge’s order. Kwan VP held that: ·        Under the principles in Re Tam Mei Kam (CACV 87/2012, 8 May 2013), where there is an extant appeal against a judgment debt, the bankruptcy court ought to assess whether the appeal has a reasonable prospect of success in deciding whether to adjourn the petition. ·        On the facts of the case, whilst the debtor’s appeal raises triable issues, the case is an appropriate one for security to be provided as a condition for an adjournment, in view of the fact that (i) judgment was obtained more than 19 months ago, (ii) the debtor's application for a stay of execution was already dismissed, and (iii) there are various deficiencies in the evidence sought to be adduced by the debtor on appeal. ·        Therefore, the Court of Appeal varied the judge’s order and reduced the amount of security to be paid into court by half. The full judgment can be viewed here: https://lnkd.in/gNYMXjvT Eugene Kwan, instructed by Cedric & Co, acted for the Petitioners (Respondents).

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TW’s Litigation Team secured two important wins this month that demonstrate its motto: Effective ~ Creative ~ Responsive.      In Voyager Indem. Ins. Co. v. Goldsmith, __ F.Supp.3d __ (2024), we are seeking a declaration that our client’s policy limit is not “open,” to frame settlement negotiations over the underlying case.  The federal court found this to be a ripe “case or controversy,” rejecting the argument coverage litigation was premature until an underlying excess judgment.  This gives carriers an important tool to challenge bad faith setups before incurring the expense of an underlying trial, positioning the case for earlier resolution. We are happy to report that the case is slated for official publication.      In Zoom Video Communications Inc. v. Underwriters at Lloyd’s, London et al., the Santa Clara Superior Court held that a civil investigative demand issued by the Federal Trade Commission did not constitute a claim under our client’s excess cyber policy. Zoom and the carriers worked cooperatively to develop an efficient cross-motion summary judgment procedure, allowing resolution on the merits for a more reasonable legal spend. Read more here: https://lnkd.in/gZ5pb2f3    #TittmannWeix #TW #EffectiveCreativeResponsive #BetterClientService  #insurance #insurancelaw #insurancecoverage #cybercoverage   

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𝒁𝒉𝒂𝒏𝒈 𝑹𝒖𝒊 𝑲𝒂𝒏𝒈 & 𝑨𝒏𝒐𝒓 𝒗 𝑻𝒖𝒏𝒈𝒉𝒔𝒖 𝑮𝒓𝒐𝒖𝒑 𝑪𝒐., 𝑳𝒕𝒅 [2024] HKCA 361 is a recent Court of Appeal decision in the global notes context that sheds light on the boundaries of Order 11, rule 1(1)(m) of the Rules of the High Court (Cap 4A) (“𝐆𝐚𝐭𝐞𝐰𝐚𝐲 (𝐦)”), i.e., the gateway for service out of jurisdiction of originating processes aimed at enforcing judgments and arbitral awards. In 𝒁𝒉𝒂𝒏𝒈 𝑹𝒖𝒊 𝑲𝒂𝒏𝒈, certain ultimate beneficial holders of global notes brought a common law enforcement claim in the Hong Kong Courts against the guarantor of the global notes, to enforce a default judgment obtained against the guarantor in New York. The central issue revolved around whether the requirements of Gateway (m) were met. Both parties did not seriously dispute that, in determining whether to grant leave under Gateway (m), Courts have customarily required the plaintiff to prove a real prospect that the proceedings will constitute a legitimate benefit to the plaintiffs. The guarantor, however, argued that Gateway (m) was not satisfied in the present case because it lacked assets, presence, or business operations in Hong Kong. At first instance, DHCJ MK Liu, rejected this argument and held that Gateway (m) was satisfied based on the facts of the case. His Lordship also denied leave for the guarantor to appeal. Subsequently, the guarantor sought renewed leave to appeal to the Court of Appeal. Read the latest Case Highlight co-authored by DVC members Alexander Tang, Chun Ho Lai, Jing En Sim and Joshua Y. at https://lnkd.in/gaCX846W. The full judgment is available at https://lnkd.in/gDtdQjwv. The first instance judgment is available at https://lnkd.in/gHCAbqTD. Mr Chua Guan Hock SC, Mr Alexander Tang & Mr Joshua Y. acted for the 1st and 2nd Plaintiffs. Mr William Wong, S.C., Mr Chun Ho Lai & Mr Jing En Sim acted for the Defendant. #DVC #DesVoeuxChambers #casehighlight #arbitration #arbitralawards #enforcement

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When can disobedience of a court order lead to personal liability for directors? In this article, our partners, Meng Teck Teh and Yeong Yoong discuss the different scenarios a director may be liable for breaching a court order and the importance of recognizing the distinct scenarios. 

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In today’s Client Update, Partner Farid Nasution, Senior Associate Wisnu Wardhana, and Associate Andhika Willy Wardana provide insights on the recent KPPU Regulation No. 2 of 2024, emphasising its impact on partnership supervision in Indonesia. With stricter evidence requirements and limited room for rebuttal, businesses must be vigilant in navigating potential challenges under this new regulatory landscape, ensuring proactive strategies to mitigate partnership risks effectively.  Read the full update at https://lnkd.in/g4fqgmNc Stay connected with Rajah & Tann Asia for Insights across Asia: Rajah & Tann Asia #AHPClientUpdate #AHP #KPPU #Partnership #Regulations #Indonesia #LawyersWhoKnowAsia 

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📚🔍 Happy Tuesday! Get into our latest Legal Update for 2024! Discover the case of JULIAN CHONG SOOK KEOK & ANOR V LEE KIM NOOR & ANOR [2024] 4 MLRA 131, addressing the query, "When does time start to run for a claim to be brought pursuant to an Agreement? Is it the date of the Agreement? Or the date damages was suffered?” For more legal insights, visit www.jhj.com.my or subscribe at kd@jhj.com.my. 📧📲 Enjoy your read! 📖✨ #JHJWeCare #MalaysianCase #LegalMatters #LegalUpdates #SubscribeNow #StayInformed

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In 𝘊𝘩𝘢𝘯 𝘊𝘩𝘶𝘯𝘨 𝘚𝘪𝘯𝘨 𝘷 𝘊𝘩𝘢𝘯 𝘈𝘯𝘥𝘺 𝘠𝘶𝘢𝘯 & 𝘈𝘯𝘰𝘳 [2024] HKCFI 536, the Court, 𝘪𝘯𝘵𝘦𝘳 𝘢𝘭𝘪𝘢, granted the Plaintiff relief from sanction under an unless order on the basis that the failure to comply could be attributed to the fault or negligence of the Plaintiff’s former solicitors, not least because Order 2, rule 5(1)(f) of the Rules of the High Court (Cap.4A) provided for a distinction between the fault of litigants and of legal representatives, of which there is no parallel in England’s Civil Procedure Rules. Secondly, the Court also found the sanction of dismissing the Plaintiff’s whole claim to be disproportionate where a more proportionate and effective sanction should have been barring the Plaintiff from taking out these interlocutory applications and imposing a date for setting down for trial without further ado.   Frederick Fong, instructed by Messrs. Wan Yeung Hau & Co., appeared for the Plaintiff who was granted relief from sanction albeit with conditions. Valerie Tang provides her analysis of the decision which can be found here: https://lnkd.in/g2x8mgUZ The judgment can be viewed here: https://lnkd.in/g7d6paUC

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In the latest edition of Benchmark Litigation rankings, Kudun and Partners has been recognized in three key practice areas, attaining Tier 2 rankings for Commercial and Transactions, Government and Regulatory, and Labor and Employment. Moreover, four of our partners have received individual recognition by Benchmark Litigation Asia-Pacific, 2024. Litigation Star Practitioner 🏆 Somboon Sangrungjang, Partner and Co-head of our Dispute Resolution, Litigation, and Arbitration Practice Future Star Practitioners 🏆 Niruch Winiyakul, Partner and Head of Employment and Benefits 🏆 Emi Rowse Igusa, Partner and Head of Japan Practice 🏆 Kongwat Akaramanee, Partner Additionally, we are honored to be the shortlisted for Thailand law firm of the year in the 10th annual Benchmark Litigation Awards. We extend our heartfelt gratitude to Benchmark Litigation for this honor and to all those who have contributed to our success. This recognition reaffirms our commitment to excellence and spurs us on to even greater heights in the pursuit of justice for our clients. At Kudun and Partners, we remain steadfast in our mission to provide world-class legal services and to serve as trusted advisors to our clients. This achievement in Benchmark Litigation 2024 serves as a testament to our unwavering dedication to excellence and our relentless pursuit of justice. For more information, please visit this link: https://lnkd.in/gwwEwgPh #BenchmarkLitigation #AwardsandRanking #ThailandLawFirm #Commercial #Regulatory #Employment

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In winding-up proceedings, the Hong Kong Court of Appeal has confirmed that where the petition debt is subject to an arbitration agreement, the Court should exercise its discretion to decline jurisdiction in favour of arbitration unless there are countervailing factors. In their article, Bryan O'Hare, Pui Yip Leung, Liam Lee and Damien Laracy put this decision in context and highlight its implications. https://lnkd.in/e3V8UgdW #ArbitrationAgreement #Insolvency #HongKong

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Carey Olsen counsel Amelia Tan will be attending the International Insolvency Institute's (III) Class XIII NextGen Program and 24th Annual Conference, taking place in Singapore from 9-11 June. She will also be participating in the Moot Court session as part of the Class XIII NextGen Program on 9 June. The session will discuss a number of international insolvency issues.   The III is a global membership of leading professionals, scholars and judges with expertise in international insolvency law. Amelia is one of the few professionals globally who was accepted into III's Class XII NextGen Leadership Program in June 2023. Please click on the link below to find out more. #InternationalInsolvencyInsitute #NextGen #Insolvency

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Defendant Acquitted Upon Court Finding No Case to Answer Sebastian Leung represented the Defendant in successfully defending one count of careless driving and obtaining a No Case to Answer in HKSAR v Pang (WKCC 13411/2023), resulting in the Defendant’s acquittal. The Defendant was charged with careless driving contrary to s.38(1) of the Road Traffic Ordinance. The Defendant was the driver of the fourth and last car involved in a four-car collision. The first and second cars allegedly braked in time. However, the third car collided with the second car, and the Defendant’s car also collided with the third car. The Prosecution alleged that the Defendant had hit the third car, pushing it forward, and causing a chain collision between all four vehicles. The main issue was whether the third car had in fact hit the second car in front, causing the accident before the Defendant had hit the third car. For the following reasons, the Court found that there was no case to answer: 1) The evidence given by the third car driver (PW1) was unreliable and changed several times. Under cross-examination, he admitted he caused the accident and could not recall the events clearly; 2) PW1 originally told the Police that he saw the second car brake so he tried to brake, but still collided with the second car, before the Defendant’s car hit the rear of his car; and 3) The Prosecution failed to show any positive evidence of the Defendant’s carelessness. Link to Sebastian's profile: https://lnkd.in/ddNDQipY #bernacchichambers #criminallaw

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Join us for an engaging Lunch and Learn seminar hosted by Chilwin Cheng of Ascendion Law. This exclusive event is tailored for lawyers (law students welcome), particularly corporate counsel, offering valuable insights into Criminal Secondary Liability for Directors, Officers, and Senior Employees, from the unique perspective of a regulatory and white-collar criminal defense lawyer. Agenda: 12:00 pm - 12:15 pm: Registration and Lunch 12:15 pm - 1:15 pm: Seminar 1:15 pm - 1:30 pm: Q&A Session and Closing Remarks Highlights: - The difference between primary and secondary liability and the distinction between secondary liability and vicarious liability. - How the Crown proves secondary liability, emphasizing the problematic concept of “acquiescence”. - Balancing the obligation of cooperating with regulators with protecting your client’s rights in an investigation. - Recognizing the signs that an inspection has become a criminal or regulatory investigation. - Working with independent counsel, particularly when the interests of the corporation and key employees are in conflict. Learn more and register here: https://lnkd.in/gXZx486k

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Our Khong Aik Gan, FCIArb and Lee Sze Ching (Ashley) have shared their thoughts on the recent Federal Court's decision on when the time starts to run for a tort action based on negligence. For more details, please refer to the article below.

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