What is the Court’s approach in determining whether to grant assistance to a foreign Court in the absence of any evidence as to the foreign Court’s “settled practice”?

21 July 2020

In Re Rennie Produce (Aust) Pty Ltd (In Liquidation in Australia) [2020] HKCFI 1500, the Court examined the approach in determining whether to order the production of documents or examination of parties by way of the Court’s common law powers of recognition and assistance in the absence of any evidence in relation to the “settled practice” of the relevant foreign court.

The facts

Rennie Produce (Aust) Pty Ltd (“the Company”) was incorporated in Australia and was being liquidated in Australia. The liquidators were appointed on 9 August 2010 (“Liquidators”).

By a Deed of Settlement dated 3 October 2012 (“the Deed”), the Company and another company belonging to the same group through their liquidators (being also the same individuals as the Liquidators) settled a dispute between the companies and what is termed the “Rennie Parties”. 

As a result of the Deed, assets held offshore by or for the benefit of the Rennie Parties are now the property of the Company. The Liquidators believe that the said overseas assets were not properly repatriated in accordance with the provisions of the Deed and they believe that the said assets were hidden away via various offshore transactions.

Accordingly, the Liquidators wanted an order for the production of documents and the examination of the Respondents in relation to the funds or assets held or previously held outside Australia for the benefit of not only the Company but also the Rennie Parties.

The Respondents opposed the application on the basis that the Liquidators had not produced any expert evidence to demonstrate that the Australian Courts would have made an order like the order that the Liquidators now seek.

The Decision

The present case was different from the more typical case where the respondent was a director, auditor or entities which provided service to the relevant company which then led to a chain of enquiry by reason of the respondent’s dealing with the company before liquidation. Instead, the main purpose of the application was to identify whether the Rennie Parties maintained or kept offshore assets.

Whilst the Court was reasonably confident that the Australian Courts would have the jurisdiction to make the order now sought in Hong Kong, it was less certain about the Australian Courts’ settled practice in response to an application of the present kind. The Court was not prepared to assume that the “settled practice” of the Australian Courts would necessarily result in an order being made.

This is important because, according to the dicta of Lord Sumption JSC in Singularis Holdings Ltd v PricewaterhouseCoopers [2015] AC 1675 (at §25), assistance cannot be granted so as to enable foreign officeholders to do something which they could not do under the law by which they were appointed. Thus, the assisting Court has to be satisfied that it is not going beyond what would have been allowed in the home jurisdiction before granting any assistance.

Whilst in many cases it will be possible and appropriate for the Hong Kong Courts to deal with applications for examination and production of documents without requiring an application being made or an order being obtained in the “home” court, the Court was not prepared to assume that the “settled practice” of the Australian Courts would result in an order being made in the present case.

Ultimately, it was held that it was more appropriate for the Court to wait for the Australian Courts to make such an order before rendering assistance. In such a case, the Hong Kong Courts would have the benefit of the reasoned judgment of the “home” court and could be confident that it was not going beyond what the “home” court would allow. The Hong Kong Courts could then make the order sought, provided that it was satisfied that it also has the power to make a similar order in the circumstances of the present case.

Commentary

This case demonstrates the importance of adducing evidence of the “settled practice” of the “home” court before invoking the common law power of the Hong Kong Courts to provide assistance (e.g. by ordering the production of documents and/or examination). In the absence of such evidence, the Hong Kong Courts may choose to wait for the “home” court to make a similar order first before granting assistance.

Terrence Tai authored this article.

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