Bricolage Investissement Benelux SA v Homeworld Hypermarket Group Co Ltd and Ors - Judgment

¶ ```markdown # IN CHAMBERS # IN THE GRAND COURT OF THE CAYMAN ISLANDS # CAUSE NO: 525/06 ## BETWEEN:

¶ [1] **BRICOLAGE INVESTISSEMENT BENELUX S.A.** - (A company incorporated in Belgium) - Plaintiff

¶ [2] **HOMEWORLD HYPERMARKET GROUP CO. LTD.** - (previously TIANJIN HOMEWORLD GROUP CO. LTD.) - (A company incorporated in the People's Republic of China)

¶ [3] **TIANJIN NORTHERN BUILDING MATERIALS TRADE CO. LTD.** - (A company incorporated in the People's Republic of China)

¶ [4] **TIANJIN NORTHERN BUILDING MATERIALS TRADE CO. LTD.** - (A company incorporated in the People's Republic of China)

¶ [5] **XI'AN HOMEWORLD PLAZA CO. LTD.** - (A company incorporated in the People's Republic of China)

¶ [6] **IIW (TIANJIN) COMMERCIAL COMPANY LTD** - (previously TIANJIN IIW HOMEWAY CONSTRUCTION MATERIALS HYPERMARKET CO. LTD.) - (A company incorporated in the People's Republic of China)

¶ [7] **HOMEWAY (CAYMAN) COMPANY LTD**

¶ [8] **DU XIA**

¶ [9] **YU KUN**

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```html 1 Counsels for the 1st to 4th and 6th to 9th Defendants：Mr. M. Imrie, Mr. J. 2 Eldridge, and Mr. C. Lynch 3 4 I heard ： 27th February, 2007 5 JUDGMENT 6 7 Levers, J. 8 9 This is an application by the First to the Fourth Defendants and the Sixth to 10 the Ninth Defendants pursuant to GCR Order 14 rule 12； Order 12 rule 8； 11 and Order 32, rule 6 for an Order that： 12 13 1. The Plaintiff's claim against the Sixth Defendant be dismissed and 14 summary judgment be entered for the Sixth Defendant； 15 2. Alternatively, the proceeding be struck out as against the Sixth 16 Defendant； 17 3. Paragraph 6 of the Order of this Honourable Court dated 8 December 18 2006 (the ‘Ex parte Order’ ) granting leave to serve the writ as against 19 the First to Fourth Defendants and the Seventh to the Ninth 20 Defendants bed； 21 writ be se 22 Seventh to Ninth Defendants；

¶ [5] The First to Fourth Defendants' and Sixth to Ninth Defendants' costs of and incidental to this application and the proceeding be paid by the Plaintiff, to be taxed if not agreed, such costs to be secured by and paid from the funds deposited by the Plaintiff in accordance with paragraph 7 of the Ex parte Order (the “Security”);

¶ [6] The balance of the Security be held pending an investigation into damage incurred by the First to Fourth Defendants and the Sixth to Ninth Defendants, and that the balance not be released until further order of the Court or written agreement from the parties.

¶ [7] Such further and other consequential orders as may be appropriate, including without limitation, an order that the Mareva injunction contained at paragraphs 1 to 5 of the Ex parte Order be discharged, on the basis of the aforementioned summary judgment and striking-out of the Writ. ## Background The parties in this matter are the First to the Fourth Defendants that are called (“the Arbitration Defendants”) for ease of reference, and the Fifth Defendant is a company incorporated in the People’s Republic of China. The Sixth to Ninth Defendants are individually Limited. ```
The Cayman Company was incorporated on 14th November, 2003. Prior to that, in or about 18th June, 2001 (that is nearly two years previously), Arbitration proceedings were commenced against the Arbitration Defendants. The Arbitration proceedings closed on 14th September, 2005. Homeway Cayman was incorporated some two years before the Arbitration proceedings closed. The Plaintiff alleges that as a result of their anticipated loss in the Arbitration Awards, the “Arbitration Defendants” conspired with each other and the Sixth Defendant, to transfer the shares of the DIY Stores located in China to a purchaser. In or around 2004, there was a proposal to transfer the shares to the Cayman Islands company, Homeway Cayman. That transfer was subject to approval of a Chinese Government department known as “Mofcom”. That transaction was not completed, as the approval was not forthcoming. No transaction involving Homeway Cayman or any Cayman Islands company which has no assets and is a purely holding company was ever completed.
formed in Cayman in order to facilitate the transfer of these shares, to avoid payment of the Arbitral award which was finalized in 2006. In essence it is are saying, that the Defendants anticipated a loss some four years before the arbitration proceedings were properly commenced and certainly three years before the award was finalized and incorporated a company with a view to divesting themselves of assets from which the award could be paid. Or it says, that if that is not case, then the fact that Homeway Cayman (although not taking part in the transaction) by its inactivity in not dissenting, acted unlawfully and did damage to the Plaintiff. The Plaintiff is also saying that these companies have common directors and shareholders and therefore they are all part and parcel of the same entity and all of them took part in a conspiracy to deprive the Plaintiff of the possibility of getting assets to satisfy the Award. The gens entire n at the Cmp (the Arbitration Defendants sold their interests to two individuals (the Seventh and Eight Defendants) at a value which it is alleged was
```html 1 considerably less than the market value. That they say is the conspiracy. 2 It is important to note that nowhere did the Plaintiff allege that the 3 Caymanian company took an active part in this alleged conspiracy. It's 4 the lack of action they complain of. 5 6 The factual situation is, that there is evidence now before this Court, that 7 the Seventh and Eight Defendants bought some of the assets, but not all 8 The Arbitration Defendants still have substantial assets 9 although the Court has no evidence as to the exact value. 10 11 The Award is over US$22 million dollars, plus interests. 12 13 The Present Situation 14 15 The Defendants are now seeking to set aside the Award in China for a 16 number of reasons. 17 18 commenced these proceedings in Cayman, and as a result of the 19 commencement of the proceedings in the Cayman Island, obtained 20 ``` This is a faithful transcription of the page, using Markdown for headings and paragraph structure, HTML for tables, and LaTeX for math.
The document discusses a legal case involving a Mareva injunction obtained ex parte in Atlanta, which was granted for an indefinite period until further order or until the trial of the action. The plaintiff then commenced proceedings in Mauritius and obtained a similar order there. The court notes that the evidence before it shows that the plaintiff did not make full and frank disclosure at the time of obtaining the Mareva injunction. Subsequently, it became known that the allegations in the Statement of Claim were inaccurate. The court had in its possession documents that showed the allegations could not be substantiated. It is also noted that the plaintiff did not advise the court that the defendants had other assets. The respondents' skeleton arguments before the court allege that there are other assets, which is not challenged by the plaintiff. Finally, it is stated that the plaintiff did not advise the court that it commenced this action based on a letter from an investigator who said, as quoted, that the information was obtained through secondary hearsay channels and cannot guarantee the accuracy of such information at this stage. Page 7 of 20
```html 1 2 And that based on those uncertain facts, the Plaintiff filed a Writ of 3 Summons. 4 5 At this stage an examination of the Writ of Summons and Statement of 6 Claim is appropriate. The allegation against the Sixth Defendant (which 7 defendant is essential for these proceedings to have been commenced in 8 the Cayman Islands) is conspiracy. Paragraph 22 of the Statement of 9 Claims states: 10 11 In the premises, the Defendants (or any two or more together) 12 wrongfully and with intent to injure BIB and/or causes loss to 13 BIB by unlawful means conspired and combined with each 14 other and/or with other persons deliberately and with intent in 15 breach of Article 28 (6) of the ICC Rules and/or harm BIB’s 16 economic interests by preventing BIB from enforcing the 17 Award against the Arbitration Defendants. The best particulars 18 that BIB can currently give are as follows: 19 20 an anticipat unfavoura 21 1. Irion of an 22 and w 23 ble Awith 24 intent of evading execution of such Award, on or 25 about 10 November 2005, the Arbitration Defendants 26 and/or HCMH, and/or Mr. Du, and/or Mr. Yu agreed 27 together and caused the Arbitration Defendants to ```
transfer all their shares in HCMH to Mr. Du (79.1%) and Mr. Yu (20.9%) at a significant undervalue and on or about 9 March 2006 Mr. Du and Mr. Yu adjusted their respective shareholdings to 66.04% by Mr. Du and 33.69% by Mr. Yu. And the particulars go on in sub-paragraph 2 to allege:

¶ [2] HCMII, and/or Mr. Du, and/or Mr. Yu, and/or Jeff Du and/or Homeway Cayman agreed that the share capital of HCMH should be transferred to Homeway Cayman and that Homeway Cayman should be sold to Home Depot, in order to further the said unlawful transfer at an undervalue and/or to allow the parties thereto to realize the benefits thereof.

¶ [3] HCMII, Homeway Cayman, Mr. Du, Mr. Yu and Jeff Du knew of the Arbitration Defendants' obligations under the ICC Rules and have intentionally or recklessly caused or induced the Arbitration Defendants to enter into the transaction at an undervalue in order to put the Arbitration Defendants' assets beyond the reach of the Plaintiff, and/or have intentionally or recklessly prevented or hindered the Arbitration Defendants from performing their obligations under the ICC Rules for the same purpose. and the Plaintiff claims an injunction against Homeway Cayman and Seventh and Eighth Defendants, damages for procuring or inducing a breach of contract. Page 9 of 20
It is abundantly clear from the Statement of Claim that the only allegation against the Caymanian company is contained in paragraph 22 (2). Based on those pleadings, learned Counsel for the Defendant, Mr. Imrie, submits that the Plaintiff's own evidence and allegations as set out in the Writ have no reasonable prospect of success against Homeway Cayman and that there is not sufficient connection with the Cayman Islands to ground jurisdiction. He submits that there is no basis on which the Court could or should exercise jurisdiction in respect of the foreign defendants. He further submits that the Plaintiff has fundamentally changed its position and did not appear to have explained that to the Court at the second ex parte hearing on 3rd January, 2007. The Plaintiff, on the other hand, argues that it has an arguable case and that it now wishes to amend the Statement of Claim. To date there is no pending application before this Court for leave to amend the Statement of Claim. Mrs. Corbett on behalf of the Plaintiff admits that the Statement of Claim needs substantial amendment, and she further states that she intends to does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of court does not leave to a amendment of 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```markdown # Conspiracy It is well established that there are two types of conspiracy:

¶ [1] Conspiracy to injury by the use of unlawful means; and

¶ [2] Conspiracy to perform an unlawful act or to use unlawful means. The authorities indicate now, that if there were two purposes to this conspiracy and the intent to injure was not the predominant purpose, the conspiracy would fail. It is also not sufficient for the Plaintiff to show that there was only foreseeable injury. To the extent that there remains any factual dispute between the parties in this case, it is as to: (a) the purpose of a transaction, and (b) the effects of the transaction. The Plaintiff says that the purpose and effect of the transaction was to harm it, so that the Arbitration Defendants could not pay the Award if it was properly enforced. This is against the background that the Arbitration Award was made and further against the background that the Cayman company took no active part, save and except, to enter into an ``` This text is a transcription of the content visible in the image, formatted using Markdown for headings and paragraph structure.

¶ [1] agreement which was never completed, as the condition upon which it rested

¶ [2] was not performed.

¶ [4] It is quite right to say that the statement of Michael Briggs, QC (sitting as a

¶ [5] deputy judge of the High Court of England and Wales, (Chancery Division)

¶ [6] in Derksen v Pillar (unreported, 17 December 2002) sets out succinctly

¶ [7] what constitutes conspiracy:

¶ [9] "The law does not prescribe any single or rigid

¶ [10] mode of analysis of conspiracy, where a series of

¶ [11] frauds or other wrongs is inflicted upon a claimant

¶ [12] by a changing group of defendants, acting loosely

¶ [13] in concert but with different degrees and periods

¶ [14] of involvement in the specific wrongs complained of.

¶ [15] Sometimes, the event may best be analysed as a

¶ [16] series of separate conspiracies between those

¶ [17] concurring in each of the relevant frauds. In other

¶ [18] cases, the better analysis may be that there was a

¶ [19] single conspiracy to injure the claimant by all

¶ [20] available means, implemented at different times by

¶ [21] different defendants by a series of acts capable of

¶ [22] being categorised as separate frauds."

¶ [24] Had the pleadings in this case been supportive of the allegation that the

¶ [25] third party

¶ [26] mmon des transfer

¶ [27] held by a

¶ [28] coign was the ass

¶ [29] and that Homeway Cayman, although it did not eventually

¶ [30] participate in the executed sale of assets to Home Depot, did, in fact by its Page 12 of 20
```html 1 silence or inactivity partake in the conspiracy to divert the assets received 2 from the Arbitration Defendants, so as to render the Arbitration Defendants' 3 judgment proof, this application would not，I am assured have been made. 4 But the pleadings do not allege that. 5 6 Pleadings are exchanged by the parties in actions. They (pleadings) have a 7 number of functions： 8 9 (a) To inform the other side of the case they will have meet to ensure they 10 are not taken by surprise at trial； 11 (b) To define the issues that need to be tried (so as to save costs at trial) 12 and to limit the ambit of discovery and the evidence that needs to be 13 prepared； 14 (c) To present the trial judge with a precise statement of the contentions 15 advanced by the parties. 16 17 Pleadings are usually the first documents read by a judge and obviously it is 18 ecessary the carefull：party may y lose som ence by mg it suffi the Co le 19 not plead cien tly if 20 amend. 21 ``` Page 13 of 20
It is trite law to say that every pleading must contain the necessary particulars of any claim, defence, or other matter intended to be advanced at trial. The allegations should be stated in a summary form and as briefly as the nature of the case permits. When in **Metall und Roshstoff AG v Donaldson Lufkin & Jenrette Inc.** [1990] QB 391, CA, per Lord Denning MR said: "It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated." The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" statement is omitted, the statement of claim is bad. (See Bruce v Odhams Press Ltd. [1936] 3 All ER 287 at page 294). The clear implication of those statements is that it is improper to plead facts which are contrary to the known and uncontested documentary evidence.
It is important that the facts contained in the Statement of Claim are accurate, at least to the best of the Plaintiff's knowledge. Indeed, in England today, one has to sign a statement of truth. The purpose of the statement of truth is to eliminate claims in which a party has no honest belief and to discourage claims unsupported by evidence which have been put forward in the hope that something may turn up on disclosure or at trial. This is precisely what happened in this case. The Plaintiff obtained a Mareva injunction, it then used these proceedings to get an order for disclosure in Atlanta. That disclosure however revealed certain documentation which proved that the Plaintiff's pleaded facts were totally inaccurate. Despite that and despite getting a Mareva on inaccurate factual pleadings, the Plaintiff has not sought to amend. Instead, at the hearing when it became apparent that the Plaintiff's attorney could not support the Summons, Mrs. Corbett conceded that the Statement of Claim needs amendment. The proposed amendments are not before the Court. The Court cannot give leave to amend without knowing the form of the amendment, as any grant of
```markdown leave to amend must avoid injustice to the Defendants. The details are therefore essential. The parties seeking leave to amend need the exercise of the Court's discretion. The Court is obviously competent to refuse to exercise its power if the proposed amendment will serve no useful purpose. An amendment will be useless if it is unarguable on the merits. As with many other interlocutory applications, the evidence and the merits of the substantive claim will usually be incomplete and untested by cross-examination. But the Court in an application for leave to amend will need to satisfy itself that the case sought to be raised, is fairly arguable. In this case the merits are not even visible and I have been asked to give leave to amend. ## Leave to Serve out of the Jurisdiction There is yet another aspect of the Law that needs to be looked at which is the leave given to serve the Writ out of the jurisdiction. The only connection with the Cayman Islands is that it is a company incorporated in the Cayman Islands. All the other defendants and all the other material events that took place in these proceedings are outside the ``` This text is a transcription of the content visible in the image, maintaining the original structure and phrasing.
The Court is unaware of where the alleged agreement was formed but that was never completed and the particulars which are relied upon for the conspiracy are that the share capital of HCMII should be transferred to Homeway Cayman and that Homeway Cayman should be sold to Home Depot. The consequences of that sale not having gone through the Plaintiff suffered no damage as a result of that particular agreement. No reliance in my view can be placed on that incomplete transaction to ground jurisdiction. The transfer to Home Depot (USA) has nothing to do with the Cayman company and the undervaluing of the shares should be related to the second transfer with which the Cayman company had nothing to do. The agreement is to sell shares to the two individuals directors who are the common directors of the Chinese companies. The Plaintiff's attorney, Mrs. Corbett submits that that is sufficient to imply that the parties were ad idem on this undervalued transfer of shares. With respect I cannot agree. The Court agrees with the First and Second Defendants that the following legal principles are relevant to this aspect of the application: Page 17 of 20
```markdown (a) The Court has inherent jurisdiction to revoke leave given ex parte upon new matters being brought to its attention, if it holds that it gave its original leave under a misapprehension; (b) The Court should set aside an order for leave to serve a writ out of the jurisdiction, if the allegations on which the order was made turned out to be unfounded; and (c) If the material facts relied upon to support an ex parte application proved to be inaccurate and if the applicant could not have obtained the ex parte relief if it had stated the facts correctly, then the court should discharge those ex parte orders. Mrs. Corbett submits strenuously that the evidence shows that the Cayman Company was silent and/or inactive when the second transaction (which was the subject matter of the alleged unlawfulness) took place and that its must mean that it knew what was happening. Although not pleaded she seeks to succeed in this application. Regrettable as it is, I cannot deny the Defendants the relief sought on the basis that the Plaintiff's attorney would seek an unknown amendment. ``` This text is a transcription of the content visible on the page, formatted with Markdown for headings and paragraph structure. The content is taken directly from the document and does not include any invented content.
```markdown (a) Defective; (b) That the evidence does not support the pleadings (c) That even taken at its highest, the evidence when looked at carefully is not supportive of any damage that has been suffered by the Plaintiff; (d) That in this case an ex parte Mareva injunction draconian by nature was obtained based on inaccurate facts. The inaccuracy of those facts was brought to the attention of the Plaintiff who did nothing when the matter came before the Court in January 2007. If this Court holds that the Mareva should be discharged against the Sixth Defendant, because the Writ should be set aside and that the Statement of Claim is bad, then the Mareva granted ex parte against all the Defendants should be discharged; (e) Finally, he submits that the only nexus with the Cayman Islands is the Cayman company against which the pleadings are defective and therefore the Writ should be set aside. I agree with counsel for the Defendants Mr. Imrie and I therefore order as follows:

¶ [1] The Plaintiff's claim against the Sixth Defendant be dismissed and Summary Judgment be entered for the Sixth Defendant. ``` This transcription accurately reflects the content of the provided text, using Markdown for headings and paragraph structure, HTML for tables (if any were present, they are not in this text), and LaTeX for math (there are no math expressions in this text).
```html Paragraph six of the Order of this Honourable Court dated 8th December, 2006 granting leave to serve the Writ as against the First to Fourth Defendants and Seventh to Ninth Defendants be discharged. The Writ be set aside as against the First to Fourth Defendants and the Seventh to Ninth Defendants and the balance of the security be held pending an investigation as to damage incurred by the First to the Fourth Defendant and the Sixth to the Ninth Defendants and that the balance not be released until further order of the Court or written agreement of the parties. An order that the Mareva injunction contained at paragraph 1 to 5 of the Order of this Honourable Court dated 8th December, 2006 be discharged forthwith as Summary Judgment has been granted and the writ struck out. An inquiry into damages, as a result of the discharge of the Mareva injunction, Costs of this application to the First and Fourth Defendant and Sixth to Ninth Defendants on an indemnity basis, such costs to be taxed if not agreed. And such costs to be secured by and paid from the fund deposited by the Plaintiff in accordance with paragraph 7 of the Ex parte Order. Page 20 of 20