Chap 7 Pre-emptive Remedies

Question 1

INTERLOCUTORY INJUNCTIONS

Who has power to grant ?

Test for the grant ?

Undertaking in damages ?
Payment to fortify undertaking in damages

Duty of frank and full disclosure ?

Procedure ?

Examples of injunctions ?

Answer 1

DC and HC

Test:
- Serious question to be tried
- Balance of convenience lies in favor of granting the injunction according to 3 principles
If plaintif succeeds and damage is adequate compensation : injunction refused
If not adequate, if plaintiff fails, if adequate compensate, injunction granted
If evenly weighed, all relevant factors

Procedure
Summons
When urgent ex parte on affidavit 
Usually after writ or originating summons is issued
Skeleton argurment 
Draft Minute of the order sought 
Should be made promptly

Question 2

Mareva injunctions

Definition

Procedure

Answer 2

Mareva
Restrain defendant from removing assets

Likely to recover judgment for certain approximate sum and defendant has assets but might deal with them so that they would not be available or traceable

Full and frank disclosure

Some grounds that defendant has assets

Good arguable care and props facile evidence

Just and convenient

Undertaking in damages

Undertaking not to enforce the Mareva injunction in other jurisdictions without leave

Undertaking to indemnify third parties

Court has power to order discovery

Question 3

JURISDICTION TO GRANT PRE-ACTION INTERIM RELIEF IN AID OF FOREIGN PROCEEDINGS

définition?

Factors?

Procedure?

Answer 3

Appoint receiver or order other interim relief in relation to proceedings which have been or are to be commenced outside HK and which are capable of giving rise to a judgment which may be enforced in HK

Not necessary to be ancillary or incidental
Same kind of undertakings as if the substantive proceedings were to be brought in HK

Factors:
- proceedings outside HK could give rise to judgment which may be enforced in HK
- court may refuse if unjust or inconvenient
- power is only ancillary and simply for purpose for facilitating
- 2-stage test (derived from American Cyanamid):
Would interim relief be granted in domestic proceedings of similar nature ?
Do the facts alleged in foreign forum amount to a valid cause of action in the domestic forum ?

Procedure
Expedited originating summons, not by way of writ
Eux parte application
Grant Or not protective measures
Return date on next summons day (at least 2 clear days after ex parte application)
Serve originating summons

Court must ask itself…

Question 4

NAMING OF THE DEFENDANTS

PROHIBITION ORDERS
Definition
Conditions

INTERIM ORDERS IN RESPECT OF PROPERTY

Preservation orders

Anton Piller orders
Definition
Conditions
Procedure

Orders requiring funds to be paid into court

Orders for inspection of property

Orders for sale of perishable property

RECEIVERS

Answer 4

PROHIBITION ORDERS
prevent a debtor to leave HK pending payment of Davy or provision of security
Before or after judgment 
Ex parte 
Affidavit evidence
4 conditions 

INTERIM ORDERS IN RESPECT OF PROPERTY

Preservation orders

Anton Oiller orders
Access to premises for looking for illicit materials and documents, to remove detain and preserve them
4 conditions
Procedure:
ex parte: full and frank disclosure and date fixed for inter partes hearing
Stringent conditions for execution

Orders requiring funds to be paid into court

Orders for inspection of property

Orders for sale of perishable property

RECEIVERS
Just and convenient
Made in conditions or unconditionally 
Court must approve appointment
Duty to account