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A Bit of Certainty During Uncertain Times

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The pandemic has turned our lives upside down. Not only because of the health consequences of the Coronavirus, but also because if you and your family are used to traveling, this last year and a half has been challenging. 

Whether you are a Hongkonger owning a holiday home in Europe, or a European living and working in Hong Kong, this crisis has shown us that international travel as we know might become more complicated. 

These uncertain times are the opportunity to reflect about our future, particularly when it comes to families owning assets in several countries, parents whose children live abroad, or expats who are considering returning to their home countries. 

Estate planning is a real issue that should not be left for last minute. It is indeed possible to plan ahead to avoid difficulties arising upon death. There are several tools which will give you and your family a bit of certainty about the future.  

OLN can help you secure your assets and plan your inheritance in advance.

The complexity of international estate planning

European inheritance law might become complex when it comes to international families, especially regarding the following aspects: 

  • Forced heirship: most European countries apply a system of reserved heirs, a form of inheritance which mandates how the deceased’s estate is to be disposed of and which tends to guarantee an inheritance for the family of the deceased. Indeed, in Europe you are not allowed to disinherit your children. 
  • Inheritance tax: some European countries are entitled to tax the assets your heirs will receive after your demise. This could particularly apply to immovable assets located in France. 
  • Specific documents: European countries may ask for documents from a national lawyer or Notary for amending the Property Deed of your real estate after the demise of the owner.

The impact of the matrimonial property regime in inheritance law

Many foreign couples got married abroad or even in Hong Kong without drafting a prenuptial or postnuptial agreement.

Depending on the countries involved in your particular situation – nationality of the spouses and heirs, location of the assets – the applicable law to the matrimonial property regime could affect inheritance.

Foreigners living in Europe and Europeans living in Europe and abroad are able to choose the applicable law to their matrimonial property regime. Indeed, European Regulation No. 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes entered in force on 29th January 2019. Article 22 of this regulation allows couples to designate either the national law of one of the spouses, either the law of their habitual residence.

Once the applicable law designated, the spouses will be able to choose their matrimonial property regime. For example, a couple might choose separation of assets. However, under some European laws the spouses might be able to choose another property regime, more protective to the other spouse upon death.

This choice could have an impact on inheritance, since the surviving spouse might be entitled to a significant part of the assets acquired during marriage.

To determine your matrimonial property regime is therefore essential for estate planning.

Choosing the best applicable law to your inheritance

In order to limit the difficulties raised above, the European Union adopted Regulation No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

From a European point of view, the applicable law to the succession will be the law of the last domicile of the deceased. However, the regulation allows citizens to choose their national law as the applicable law. A competent lawyer in both jurisdictions will be able to advise you about the best applicable law for your inheritance.

The regulation also creates a “European Certificate of Succession”, an essential document to be drafted by a local authority in order to transfer the ownership of the assets located in Europe to the heirs.

The local authority will need to ensure that the will respects European procedures.

Tools to protect your assets and plan your inheritance

Several tools are available for international estate planning besides drafting a will in Europe and Hong Kong. You could consider donating part of your assets to your children or incorporating a company who will own your real estate for your family.

  • European and Hong Kong wills: an analysis of your situation, the location of your assets and the tax residence of your family members is necessary to assess the suitability of a Hong Kong or European will. In some cases, a European will would be more appropriate. Depending on the case, a Hong Kong will would be needed to complete the European will. In any event, if you own any assets in Europe, it is advisable to take into consideration the tax implications for your heirs before drafting the will.
  • Donation to children during lifetime: in some cases, giving part of our assets to your children during your lifetime would decrease your estate upon death and therefore the tax will be lower. For example, in France parents are allowed to give up to 100.000 € per parent and per child every fifteen years, exempt of tax. 
  • Donation of the real ownership of immovable assets to the children: in some European countries, it is possible to separate the real ownership from the usufruct. One way of decrease your estate before death and to keep the use of the house could be donating the real ownership to your children while the parents keep the usufruct until their death.
  • Incorporation of a Property Company:  some European countries like France provide many ways to limit the inheritance problems for real estate. One of the most popular ones would be creating a “Société Civile Immobilière”, a Property Company owning the real estate instead. Upon demise, the heirs will inherit the shares of the Company and not the real estate itself.
  • Trusts: most Continental European laws do not permit to set up trusts. It is however possible to set up a trust in Hong Kong but legal advice is mandatory to ensure that there will be no consequences for the inheritance of European assets.

An assessment of your particular situation is needed in order to determine the best options international law can offer.

Brexit

I sadly need to remind you that the United Kingdom is not a part of the European Union since January 2021. But for every problem, a solution: our specialized lawyers at OLN can advise you on estate planning in the United Kingdom, Continental Europe and Hong Kong!

September 2021

Changes to the Profit Requirement for Main Board IPO (Part 2)

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Introduction

Further to my previous article “Proposed Changes to the Profit Requirement for Main Board IPO” published in May 2021 (the “Article”), The Stock Exchange of Hong Kong Limited (“Stock Exchange”) published the consultation results shortly after the publication of the Article. 

Consultation of the Stock Exchange

To recap, the Stock Exchange published a consultation paper in November 2020 (“Consultation Paper”) proposing to increase the profit requirement for Main Board IPO listing applicants. The Stock Exchange proposed 2 options for the increase, one proposing to increase the overall profit requirement by 150% of the current profit requirement (“Option 1”) and the other proposing to increase the overall profit requirement by 200% (“Option 2”).

Consultation Conclusion[1]

Noting that some companies with a proposed small market capitalization at the time of application that might not be able to meet their profit forecast post-listing and the concerns raised by respondents to the Consultation Paper on the proposed increase in Main Board profit requirements, the Stock Exchange adopted a profit increase which is neither Option 1 nor Option 2. The new profit requirement adopted by the Stock Exchange is a modified version of Option 1 and Option 2 (“Modified Profit Requirement”), being HKD35 million for the most recent financial year prior to the listing application and HKD45 million in aggregate for the 2 preceding financial years, representing a 60% increase from the current profit requirement and a change in the profit spread from 60%:40% to 56%:44%. With the Modified Profit Requirement, the implied historical P/E ratio drops from 25 times to 14 times. The Stock Exchange is also prepared to grant relief from the profit spread under the Modified Profit Requirement in order to allow more flexibilities to listing applicants, on a case-by-case basis. The Modified Profit Requirement takes effect on 1 January 2022.

Although the Modified Profit Requirement is less than Option 1 and Option 2, still with such increase, it will inevitably drive away small size companies who are only marginally able to meet the current Main Board profit requirement. On the other hand, with the Modified Profit Requirement, small market capitalization companies which might otherwise not be eligible for listing on the Main Board under the proposed increase under Option 1/Option 2 can still apply for Main Board listing if they satisfy the new requirement.

In fact, as previously mentioned, the Stock Exchange accepted 102 Main Board IPO listing applications between January and April 2021 since the publication of the Consultation Paper, the number of new Main Board listing applications received by the Stock Exchange between May and August 2021 was 135[2], indicating that even more companies are aiming to take advantage of the last chance to be assessed based on the current profit requirement.

The impact of the Modified Profit Requirement remains to be seen but at least it has the effect of pushing forward the IPO plans of companies with low profits who may not qualify to be listed on the Main Board after the new profit requirement rules come into effect. We can expect to see even more new Main Board IPO applications to be submitted to the Stock Exchange prior to the Modified Profit Requirement coming into effect.

If you wish to learn more about listing in Hong Kong, please feel free to speak to our Simon Wong.

Simon Wong
+852 2186 1848 / +852 9460 9816
simon.wong@oln-law.com
Partner, Corporate & Commercial
Oldham, Li & Nie

September 2021

[1] Consultation Conclusions – The Main Board Profit Requirement

[2] Progress Report for New Listing Applications – Main Board IPO Applications

Leave No Stone Unturned: Contractual Indemnity As The Best Safeguard

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Letter To The Hong Kong Lawyer – September 2021

In “Arbitrators’ Power to Award Costs of Ancillary Court Proceedings” (Hong Kong Lawyer, June 2021), the authors maintain that an arbitral tribunal cannot award costs incurred for obtaining interim measures in ancillary court proceedings (the “Costs of ACP”) because such costs do not constitute “costs of arbitral proceedings”.

The overlooked legislation

With due respect, the analysis set out in the earlier article “Recovering in Arbitration Costs of Ancillary Court Proceedings Revisited” (Hong Kong Lawyer, April 2021) has not been fully appreciated and again section 74(3) of the Arbitration Ordinance (the “AO”) has been overlooked.

To recap, section 74(3) of the AO expressly provides that an “arbitral tribunal may …… order costs …… in respect of a request made by any of the parties for an order or direction (including an interim measure).” (emphasis added) It appears to empower the arbitral tribunal to award costs in addition to the usual costs of arbitral proceedings under section 74(1) of the AO.

Costs of arbitral proceedings

Although the concept of “costs of arbitral proceedings” has been explored in many articles in other jurisdictions, such discussion has no relevance to the interpretation of section 74(3) of the AO, a unique provision created by Hong Kong legislators without any equivalent in foreign statutes.

In any event, in the materials cited, certain circumstances under which an arbitral tribunal may award Costs of ACP in arbitration have been identified:

1. In International Arbitration Practice Guideline (2006), it is suggested that the costs of interim measures may be recoverable in arbitration if they cannot be dealt with by the local court, or the court has referred them to the arbitration tribunal for decision.

2. Similarly, Micha Bühler (2018) accepted that Costs of ACP may be recoverable as arbitration costs so long as there is no duplication in the award of costs and that the proceedings are not in breach of arbitration agreements.

3. Prof Jeffrey Waincymer (2012) went further to say that Costs of ACP may potentially be argued to be costs of the arbitration “where it is ancillary behaviour of the successful party in supporting the arbitration, such as the costs of court-ordered provisional measures”.

Doctrinally, an arbitral tribunal’s jurisdiction to award Costs of ACP should not be contingent upon certain events unless otherwise clearly specified. In our humble submission, these writings therefore tend to support, rather than reject, the proposition that an arbitral tribunal indeed has jurisdiction to award Costs of ACP. A better proposition should be that an arbitral tribunal has jurisdiction to award costs, but such jurisdiction should be extremely rarely exercised, for obvious public policy reasons that need not be repeated here.

Realistic and practical commercial solution

Whilst it might be commendable to advocate for a foreign jurisdiction to make way for Costs of ACP to be awarded by arbitral tribunal, this approach may not be realistic where such a position is contradictory to the default costs rule in the foreign jurisdiction. In any event, it may be impracticable to change the practice of each foreign jurisdiction as well.

Consistent with the cited academic writings, in particular Waincymer (2012), it is humbly submitted that a simple and practical solution is to insert a costs indemnity in the arbitration agreement, so that Costs of ACP could be expressly recovered as damages.

Acknowledgement

The authors acknowledge the research guidance by Dantes Leung (Partner of Oldham, Li & Nie) and research input from Jerry Leung (Summer Intern of Oldham, Li & Nie). Any errors, omissions and mistakes remain the sole responsibility of the authors.

Is a Gig Worker Self-employed or an Employee?

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“Gig economy” is an emerging global trend alongside technological advancement. It generally describes the economy in which people take up part-time jobs and/or engage in project-based and/or temporary freelance works via digital job-matching platforms. Gig economy has prospered in HK in recent years as the pandemic alters the job market landscape. Employers tend to downsize the portion of permanent staff and increase the number of temporary/part-time worker to allow for flexibility. The growth of gig economy is also attributed by the blooming online platforms and e-commerce industry, such as those engaging in food delivery and ride-hailing. Conventional sectors such as banking, retail and information technology have hired more gig worker to bring flexibility to their employment structures. In this article, we would look at how the employment relationship under the gig economy is governed under our present legal framework.  

Gig Workers’ Status in Hong Kong

While gig employment is a relatively new concept in Hong Kong, the characterization of such relationship is still determined by the conventional “employee/self-employed” dichotomy. A gig worker can be an “employee” or a “self-employed” depending on how the contract is drafted. If one is classified as employee under the law, s/he is entitled to the statutory benefits and protections under, among others, the Employment Ordinance (Cap. 57) (“EO”), the Employees’ Compensation Ordinance (Cap. 282) (“ECO”) and the Mandatory Provident Fund Schemes Ordinance (Cap. 485) (“MPFSO”). 

Therefore, the employee/self-employed distinction remains to be the starting point prior to understanding the gig worker’s legal rights in the HK employment context. The major differences between self-employed persons, fixed term employment and permanent employment under the labour protection regime in Hong Kong are summarized in the following table:-

 

 Self-employed persons Fixed Term Employment Permanent Employment

Nature

Self-employed

Employee

Employment Ordinance

Not applicable

Applicable

Employees’ Compensation Ordinance

Not Applicable

Applicable

Statutory Employee Benefit – Annual Leave

×

As of right to an employee under a continuous contract for not less than 12 months (Part 8A, EO).

Statutory Employee Benefit – Sickness allowance

×

As of right to an employee under a continuous contract for not less than 1 month (Part 7, EO).

Statutory Employee Benefit – Severance

×

As of right to an employee under a continuous contract for not less than 24 months, and is dismissed by reason of redundancy or laid off (Part 5A, EO)

Statutory Employee Benefit – Long Service Payment

×

As of right to an employee under a continuous contract for not less than 5 years:, and:

(i) is dismissed not by reason of summary dismissal due to serious misconduct, or redundancy

(ii) is certified by a registered medical practitioner as permanently unfit for the present job and has resigned on such ground

(iii) is aged 65 or above and resigned on such grounds

(iv) dies during service

(v) employment contract of a fixed term expires without being renewed (provided that the employee has not unreasonably refused an offer to renew).

 

Statutory Employee Protection – MPF

Self-employed persons are required to enrol themselves in an MPF scheme within the first 60 days of becoming self-employed.

Employer must contribute to registered scheme, and deduct from an employee’s income as contribution, unless the employee is employed for a fixed period of less than 60 days.

Termination

Depends on agreements between self-employed persons and online platforms

Termination of employment contract by notice or payment in lieu of notice by either the employer or the employee

Termination without notice by employer (i.e. summary dismissal) on the ground of the employee (i) wilfully disobeys a lawful and reasonable order, (ii) misconducts himself, (iii) is guilty of fraud or dishonesty, (iv) is habitually neglectful in his duties, or (v) on any other ground on which the employer would be entitled to terminate the contract without notice at common law.

Termination of contract without notice by employee (i.e. constructive dismissal) on the ground of (i) he reasonably fears physical danger by violence or disease, (ii) he is subjected to ill-treatment by the employer, (iii) he has been employed for not less than five years and is certified by registered medical practitioner as being permanently unfit for the type of work he is being engaged, or (iv) on any other ground on which he would be entitled to terminate the contract without notice at common law.

Termination upon expiry of fixed term contract.

 

Employees’ Compensation in the course of employment

×

Available for an employee suffering any personal injury by accident arising out of and in the course of the employment (s.5 ECO).

As shown in the table, under the current labour protection regime, many, if not all, labour rights stem from the “employee” status. Often time, businesses are attracted to contract out parts of their works to gig worker because they are generally expected to be self-employed and the businesses need not bother themselves with submission of return to the HKIRD or MPF arrangement which would otherwise be compulsory if they are in the capacity of employers. Whether the gig employment constitutes an employee/self-employed relationship is, however, not always easy to determine. 

Precedent cases, however, suggest that an “agent”, “consultant”, “freelancer” or “contractor” (however one names it) might still be deemed an “employee”. What further muddles the water is the few landmark cases by courts of other jurisdictions ruling that gig worker are indeed “employees” or “workers” who are entitled to certain labour rights. For example, The UK Supreme Court has unanimously held that Uber drivers were “workers” under UK employment legislation, thus entitled to labour rights such as national minimum wage and paid annual leave: Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5. The Amsterdam’s Court of Appeals has ruled that riders of Deliveroo, an online food delivery platform, must be treated as employees, and a Barcelona Court in Spain has ordered a payment of 1.3 million euros in social contributions for the same reason. All these rulings were made in 2021, and they seemed to have contributed to a more gig worker’s protection in Denmark, Austria and Sweden. 

HK Courts’ Consideration

In Hong Kong, the determination of employer-employee relationship is highly fact-specific and is a matter for the courts to decide on a case-by-case basis. In the leading authority, Poon Chau Nam v Yim Siu Cheung [2007] HKCFA 19, it was decided that the existence of an employer-employee relationship is a matter of overall impression against the background of indicia of employment. The list of factors that would be considered by the courts in determining the question was explained in Tang Chau Yuet v Fu Kin Po [2011] 1 HKLRD 519. Factors include: –

  1. Alleged employer’s degree of control over the task of the alleged employee – if the alleged employee has liberty to decide how, when, where one works, he is more likely to be viewed as “self-employed” rather than “employee”;
  2. Alleged employee’s own provision of equipment; 
  3. Alleged employee’s own hiring of helpers;
  4. Alleged employee’s own bearing of financial risk and the degree of it;
  5. Alleged employee’s opportunity to profit from sound management in the performance of his task;
  6. Alleged employee’s bearing of responsibility for investment and management;
  7. Alleged employee’s role in the alleged employer’s organization;
  8. Alleged employer’s bearing of responsibility in relation to insurance and tax for the alleged employee;
  9. Alleged employee’s carrying on business in the trade in question;
  10. The parties’ own view of their relationship; and,
  11. The traditional structure of the trade or profession concerned and the practices within it.

How the Hong Kong Court would perceive the gig worker’s relationship with their principals is yet to be seen. In this regard, reference could be drawn to the UK Supreme Court decision in Uber BV where their Lordships unanimously came to the following conclusion and found that Uber drivers are “workers”, i.e. an intermediate class with basic labour protection under the UK law: –

  1. Fixed remuneration – Uber has control over the fares, as well as the sole discretion to make full or partial refunds upon complaints.
  2. Standard contractual terms – Uber drivers are required to accept Uber’s standard form of contract.
  3. Restricted driver’s choice to accept rides – Uber exercise controls over acceptance of the request by the driver by first controlling information provided to the driver, and second by monitoring the driver’s rate of acceptance and cancellation of trip requests, with penalty for high cancellation rate.
  4. Control over types of car and platform – types of car and technology integral to the service is wholly owned and controlled by Uber
  5. Restricted communication between passenger and driver – Communication is limited to the minimum necessary to prevent drivers from establishing any relationship with a passenger. 

The Uber case was highly fact-sensitive. The above factors, or some of them, may or may not be present in other online platforms and gig employment, which could lead to very different result. Nonetheless, it would be advisable for online platforms or businesses in e-commerce, or anyone intending to hire gig worker, to go over the checklist above and assess their proper relationship with the gig worker. 

If you would like to discuss any points raised above in more detail, please do contact Anna on the details below.

E: anna.chan@oln-law.com
 

Thank you Helping Hand!

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We are so fortunate to be given the chance to work with low-income individuals within the elderly community.  Always a good thing when the feelings are mutual! Thank you for the “badge of honour”, Helping Hand! 

helping hand certificate of appreciation oln

Dissipation of Assets by Debtor – How Lumley v Gye Tort Can Assist Creditor

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The notorious “dissipation” cases

One of the common questions a desperate creditor would ask is whether he/she can go after the ultimate owner/the controller of the debtor company instead of the debtor itself. In most circumstances, the answer is No because:-

  1. Under the “privity of contract”, only the contracting party can be sued for breach of contract. Where there is a written contract, a party is in general bound by its terms after signing. A party is not allowed to claim that there are contracting parties other than those stated in the contract, especially when the application of The Contracts (Rights of Third Parties) Ordinance has been expressly excluded.
  2. A company is accepted in law as a separate “legal personality” which is able to act on its own, and is also able to be sued and become liable on its own. In the case of a limited liability company, a shareholder’s liability is limited to the extent of his investment in the company.
  3. Only in very exceptional circumstances (such as fraud) that the court would “lift the corporate veil”. But even in the case of fraud, the UK Supreme Court once pointed out in VTB Capital plc v. Nutritek International Corp [2013] UKSC 5 that it is wrong to treat the persons behind as contracting parties to hold them contractually liable.  

In view of the above cardinal principles, a cunning owner/controller may nominate a limited liability entity as the borrower/contracting party thus shielding oneself from personal liability. Such owners/controllers may also willfully drain the company’s financials or in more radical cases, they may even try to siphon off assets from the company to their related parties. In the latter scenario, as it is not uncommon for such controllers to have lent money to the company by way of shareholders’ loans, such controllers may even actively pursue the winding-up of the company with the ultimate goal to appoint a liquidator over whom they may exert influence.

Creditors’ options in such an unfortunate circumstance are limited. The creditor may try to obtain a Mareva injunction against the debtor company, which is, however, preventive in nature and would have no use if dissipation has already occurred. In such a situation, what has been consistently underexplored, if not overlooked, is the tort as recognised in Lumley v. Gye [1853] EWHC QB J73, or what is modernly called the tort of procuring a breach of contract. As will be seen below, this tort has been recently reinvigorated (in particular in the cases of Marex Financial Limited v. Carlos Sevilleja Garcia [2017] EWHC 918 (Comm) and Palmer Birch v. Lloyd [2018] EWHC 2316 (TCC)) to cover shareholders/ directors (and even ultimate beneficial owners and shadow directors) of a company who, through dissipation, have emptied the pocket of the company to deprive it of the means to make payments to its contractual counterpart. This may sound a bit ironic because while commercial lawyers have always tried to use the device of contract to avoid the need to establish a “duty of care” should a dispute later arise, it is tort law which comes to the rescue when no effective means is to be found in enforcing a contract. On the other hand, as will be analysed below, it cannot be overstated that a contract nonetheless plays a significant role here because the tort relies on the existence of a contract and a breach thereof (which in turn depends on the existence, breadth, legality and enforceability of a contractual clause). Viewed in this light, the existence of the Lumley v. Gye tort actually highlights the importance of the drafting technique of a commercial lawyer.

The Elements of the Lumley v. Gye Tort 

The basic elements of the Lumley v. Gye tort are that:

  1. There at least has to be a contract.
  2. There at least has to be a breach of the contract.
  3. There has to be an element of participation (which has to be more than mere prevention) on the part of the shareholder/director/controller in causing the breach of the contract.
  4. The shareholder/director/controller must also have intended to procure the breach of the contract through its participation. Impliedly, they must also have known of the existence of the contract.
  5. The plaintiff has to have suffered a loss.

Having regard to the elements of the tort, it is then not difficult to understand why such a tort can be a useful weapon in a dissipation case against the controllers of the company where a breach of contract has already occurred. By definition, such controllers are in control of the company so that it is usually hard for them to insulate themselves from the dissipation. On the other hand, being close to the affairs of the company, they cannot really deny their knowledge of the contract. As for the fifth element, the non-payment under the contract is the loss suffered.

It can be immediately observed that while the Lumley v. Gye tort seems to have “sidestepped” the doctrine of separate legal personalities, it does not deny and is actually premised on the recognition of the separate legal personalities of a company and its controllers (so that they can be properly regarded as third parties). Therefore, there is no established policy reason to exclude a claim against the controllers once the elements of the tort are satisfied. The debtor in Palmer Birch tried to argue that the whole claim was an impermissible attempt to pierce the corporate veil but such argument failed.

As can be shown in the Supreme Court case of Sevilleja v. Marex Financial Ltd [2020] UKSC 31, a claim based on the Lumley v. Gye tort is allowed even when the company is in the process of being wound up. The no reflective loss rule is no bar to such a claim. A general creditor may therefore be in a more advantageous position since he/she could have a direct claim against the controllers circumventing the problems of ranking lower than secured creditors or ranking pari passu with claims of other general creditors. 

Is there a tort of knowingly inducing or procuring the wrongful violation of a judgment debt?

Under the doctrine of merger, upon obtaining a judgment, the contractual debt has “merged” into the judgment and the claimant can no longer rely on the original contractual debt. The question then is, whether the creditor can still rely on the Lumley v. Gye tort where the non-payment is in respect of a judgment debt deriving from a contractual debt? This is the scenario encountered by the English Court in Marex Financial, where at first instance Knowles J decided in an interlocutory application hearing that there exists a tort of knowingly inducing or procuring the wrongful violation of a judgment debt, thereby extending the application of the Lumley v. Gye tort to cover such a judgment debt. Though this case was subsequently appealed to the Supreme Court on other points, ruling on this point remains undisturbed.

The decision of Marex Financial however leaves another problem unaddressed. Given that the original Lumley v Gye tort only recognizes contractual interests as a specific asset class worthy of its protection, it remains to be seen whether the tort of knowingly inducing or procuring the wrongful violation of a judgment debt can be extended to judgment debts based on other causes of action (e.g. a monetary judgment obtained solely based on a tortious claim).

Even if the tort of knowingly inducing or procuring the wrongful violation of a judgment debt is kept within its current bounds, it still represents an outlier in the common law world because a cause of action is generally considered as completed upon the grant of the judgment so that the failure of the debtor to satisfy a judgment debt would not give rise to another cause of action, and the creditor is left with traditional enforcement actions and winding-up proceedings. By this special tort, the creditor can now launch a new claim against the shareholder/director/controller of the debtor company where the judgment debt (which has to be derived from a contractual debt) remains unsatisfied.

Comparison to other economic torts

The Lumley v Gye tort also has the following advantages when compared with other economic torts:

  1. No fraud needs to be proved as in the case of tort of deceit. It has to be borne in mind that fraud is a serious allegation and it is hard to prove fraud in a commercial context.
  2. No unlawfulness needs to be proved as in the cases of unlawful means conspiracy and unlawful interference.
  3. Unlike conspiracy, only one wrongdoer (other than the contract breaker) is enough in the Lumley v. Gye tort.

The Lumley v. Gye tort also seems to be exceptionally useful against shadow directors who are acting outside of the constitution of the company. Ironically, this may deprive them of the defence of “acting bona fide within the scope of his authority” conferred on by the company whereas such a defence is generally available to a de jure director. It is therefore not a coincidence that the main defendant in both the cases of Marex Financial and Palmer Birch is a shadow director.

On the other hand, in dissipation cases, what the claimant requires is some initial evidence that there has been dissipation of assets from the company. Such financial information is not normally available to outsiders and as the claimant cannot fish for evidence, he may have to obtain such evidence through other legal routes. Such routes may include contractual clauses which allow access to financial information (which are commonly included in commercial agreements), as well as disclosure orders ancillary to a Mareva injunction. 

Conclusion

Both the cases of Marex Financial and Palmer Birch have not been considered by the Hong Kong courts in the context of a Lumley v. Gye tort. It therefore remains to be seen whether the two cases will be followed by the Hong Kong courts, especially when the flexible use of the Lumley v. Gye tort has the effect of sidestepping many of the long-lasting common law principles as described above. However, as an experienced litigator can tell, there is often no better way to apply pressure on the other side than to sue the natural persons behind, and for this reason alone the possibility of launching a claim based on the Lumley v. Gye tort is worth exploring. 

Our firm has extensive experience in debt recovery action in HK. If you have any question regarding the topic discussed above, please contact our partner Anna Chan at anna.chan@oln-law.com or Martin Tse at martin.tse@oln-law.com for further assistance.

August 2021