2022整理-(合作办学合同书).docx

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1、ABCDEFGHIJKLMNOPQRSTUV由此ABCDEFGHIJKLMNOPQRSTUV- 2 -HCA 1221/2006IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGIONCOURT OF FIRST INSTANCEACTION NO. 1221 OF 2006_BETWEEN PINE ENTERPRISES LIMITED Plaintiffand CYBER STRATEGY LIMITED 1st Defendant LECTURE KIT COMPANY LIMITED 2nd Defendant a

2、nd WOO PAK HAY EDWARD 1st Third Party LAW SHIU KAI ANDREW 2nd Third Party _HCCW 593/2005IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGIONCOURT OF FIRST INSTANCECOMPANIES WINDING-UP PROCEEDINGS NO. 593 OF 2005_IN THE MATTER of Union Resources (Educational Development) LimitedAND IN THE

3、MATTER of Sections 168A and 177(1)(f) of the Companies Ordinance (Cap 32)BETWEEN PINE ENTERPRISES LIMITED Petitionerand LECTURE KIT COMPANY LIMITED 1st Respondent UNION RESOURCES 2nd Respondent(EDUCATIONAL DEVELOPMENT) LIMITED_(HCA 1221/2006 and HCCW 593/2005 are heard and tried together pursuant to

4、 the order of High Court Judge Poon dated 31 July 2007)Before: Deputy High Court Judge To in CourtDates of Hearing: 17 - 21, 24 - 25, 27 - 28 September 2007, 2 - 3 October 2007, 5 - 6, 8 - 9, 12 - 14 November 2007, 4, 7 - 8, 14, 30 - 31 January 2008 and 1, 4 February 2008 Date of Judgment: 14 March

5、2008_J U D G M E N T_编号：时间：2021年x月x日书山有路勤为径，学海无涯苦作舟页码：第100页 共100页INTRODUCTION1. This is a trial of two actions, namely HCCW 593/2005 and HCA 1221/2006, ordered to be tried together pursuant to the order of Poon J. The dispute arose out of four agreements in connection with the sale by Pine Enterpris

6、es Limited (“Pine”) of its shares in Union Resources (Educational Development) Limited (“UR Limited”) to Lecture Kit Company Limited (“Lecture Kit”). The shares in UR Limited were duly transferred to Lecture Kit on 13 May 2003. Pine complained of breach of the agreements. On 1 August 2005, Pine peti

7、tioned for the winding up of UR Limited on just and equitable ground under HCCW 593/2005. On 7 June 2006, Pine also commenced action HCA 1221/2006 against Lecture Kit and its parent company Cyber Strategy Limited (“Cyber Strategy”) for breach of agreement. Cyber Strategy and Lecture Kit counterclaim

8、ed against the 1st and 2nd Third Parties for false representation. I consider the main action is HCA 1221/2006.2. The Plaintiff and the 1st Third Party are represented by Mr Poon SC and Ms Linda Chan. The Defendants are represented by Miss Angela Gwilt and Mr C Y Li who joined in as leading counsel

9、on the 12th day of trial. The 2nd Third Party, who is a practising solicitor, appeared in person except for the last day of the trial when he is represented by Ms Elsie Yiu.3. By the seventh day of the trial, the parties were still entangled in pre-trial matters. Rather than to have both actions adj

10、ourned and re-fixed, I considered it in the best interest of all parties to continue hearing the main action and to adjourn the winding up action. Hence, on my own motion, I adjourned HCCW 593/2005 to a date to be fixed and continued hearing HCA 1221/2006. I am glad to have taken that course, becaus

11、e as the evidence unfolds, it became obvious that the evidence in the winding up action would be highly prejudicial to the Defendants in the main action and the evidence in the main action would also be prejudicial to the Respondents in the winding up action. In this judgment, I shall refer to some

12、of the evidence in the winding up action for the purpose of setting out the background in which the material issues which I have to decide in the main action arose. I do not rely on any of those evidence in my assessment of credibility of witnesses or finding of fact in the main action. I make no fi

13、nding of fact in respect of the winding up action either, not even a provisional view.4. On the 13th day of trial, shortly after opening the defence case, the Defendants offered to discontinue the third party proceedings against the 2nd Third Party, Andrew Law, with costs. The offer was not accepted

14、 because of disagreement on the scale of costs. Andrew Law continued as a third party. But for all practical purposes, the Defendants have abandoned their claim against Andrew Law. The issue as between the Defendants and Andrew Law is whether Andrew Law is entitled to have his costs on indemnity bas

15、is. 5. The dispute is about two of the four agreements. On 12 April 2003, Pine, Cyber Strategy and Lecture Kit entered into three agreements in connection with the sale and purchase of shares in UR Limited. On the same day, they also entered into a fourth agreement with UR Limited to regulate their

16、management of UR Limited. 6. Under the Sale and Purchase Agreement, Lecture Kit purchased from Pine 51% of its shares in UR Limited (i.e. 510,002 shares) and Pine purchased from Cyber Strategy 20% of its shares in Lecture Kit (i.e. 1,000 shares). In essence, that was a share swap agreement. The prin

17、cipal asset of UR Limited was, and still is, its wholly owned subsidiary, Union Resources Limited Educational Development (Yanjiao) Company Limited (“UREDY”) which owns a piece of land (“the Campus”) in the Peoples Republic of China (“PRC”). 7. Under the Lecture Kit Shareholders Agreement, Cyber Str

18、ategy agreed to repurchase Pines 1,000 shares in Lecture Kit at HK$12.5 million if Lecture Kit is not listed by 12 April 2005 and Cyber Strategy agreed to deposit its 510,002 shares in UR Limited with Messrs Andrew Law & Franki Ho as custodian.8. Under the Option Agreement, Lecture Kit granted an ir

19、revocable option to Pine to call upon Lecture Kit to issue a convertible note for HK$20 million with interest, in consideration of Pines agreement to procure Edward Woo to waive his directors loan to UR Limited. Pursuant to this agreement, Edward Woo signed a letter of release confirming his agreeme

20、nt to release and discharge “all loans and liabilities hitherto due and owing by” UR Limited to him, whether listed or not listed in the books of UR Limited, and which was not less than HK$53,547,843. 9. The sale and purchase of the shares in UR Limited was completed on 13 May 2003. Pursuant to the

21、Option Agreement, a convertible note in the adjusted amount of HK$20.65 million was executed by Lecture Kit, which was subsequently dated 1 February 2004 with a maturity date on 1 February 2006. The dispute between the parties is related to the Lecture Kit Shareholders Agreement and the convertible

22、note issued pursuant to the Option Agreement.10. On 2 July 2003, Gary Ho, for and on behalf of UREDY, entered into the Cooperation Agreement (合作辦學合同書) with China Institute of Defence & Science Technology (“CIDST”) in providing educational services. CIDST took possession of the Campus and operated a

23、joint educational institute with UREDY there. On 10 November 2003, UREDY demanded CIDST to vacate the Campus for having failed to obtain a bank loan which was a term of the Cooperation Agreement. After some negotiations, on 4 February 2004, UREDY and China Defence Technology Centre (Beijing) (“CDTC”

24、) reached an agreement for the sale of the Campus to CDTC for RMB 50 million (“Campus Sale Agreement”). CDTC paid UREDY RMB 10 million on 12 February 2004. On 5 March 2004, UREDY paid RMB 9 million to Beijing AIR Strategy and Information Technology Limited (“Beijing AIR”) purportedly to settle debts

25、 due from UR Limited and UREDY to various companies within the AIR group. On 29 April 2004, UREDY entered into two consultancy agreements with AIR Logistics International Limited (“AIR Logistics”) under which UREDY would pay AIR Logistics RMB 9.744 million a year for professional realty management a

26、dvice and RMB 35.01 million a year for real estate development advice.11. CDTC defaulted in paying the balance due under the Campus Sale Agreement. That was followed by arbitration proceedings in the PRC and then an agreement to sell all the shares in UREDY to Jeavon Limited, a nominee of CDTC (“Jea

27、von Agreement”) on 3 February 2005. The Jeavon Agreement was terminated on 30 July 2005. 12. The listing of Lecture Kit did not materialise by 12 April 2005. Cyber Strategy refused to repurchase the 1,000 shares in Lecture Kit held by Pine and refused to honour the convertible note. On 1 August 2005

28、, Pine petitioned for the winding up of UR Limited. On 13 September 2005, Asian Information Resources (Holdings) Limited (“AIR Holdings”) entered into an agreement to sell Eleson Inc together with its chain of subsidiaries including Cyber Strategy and Lecture Kit to Beijing Olympics Limited for HK$5

29、0,000. On 7 June 2006, Pine commenced the main action.THE ISSUES 13. Pine claims against Cyber Strategy damages for breach of the Lecture Kit Shareholders Agreement in the sum of HK$12.5 million for its failure to repurchase the 1,000 shares in Lecture Kit and against Lecture Kit the sum of about HK

30、$25.5 million under the convertible note. In addition, Pine seeks a declaration that the 510,002 shares of and in UR Limited have been and are charged in favour of Pine as security for payment of all sums owed by Cyber Strategy and Lecture Kit under the Lecture Kit Shareholders Agreement and the con

31、vertible note.14. In essence, the defence of Cyber Strategy and Lecture Kit is that they entered into the four agreements as a result of certain false representations made by Pine, Edward Woo and Andrew Law and certain non-disclosures in the course of negotiation of the four agreements. They also cl

32、aim that they were discharged from their liability under the convertible note as Edward Woo had failed to comply with the condition precedent by waiving his directors loan to UR Limited of the requisite amount. They seek a declaration that the four agreements are rescinded and counterclaim for damag

33、es for false representation and non-disclosure. In addition, they also make similar claims against Edward Woo and Andrew Law as third parties.15. There is no dispute that the Plaintiff had performed its obligations under the Sale and Purchase Agreement and has exercised its option under the Option A

34、greement. The factual dispute is whether the Plaintiff had procured Edward Woo to waive the requisite amount of loan. Subject to the Plaintiff discharging that burden, the burden would then be on the Defendants to prove the false representations and non-disclosures in order to have the four agreemen

35、ts rescinded and relieved of their liability under the four agreements.The alleged false representations and non-disclosures16. The Defendants pleaded defence is excessive, confusing and overlapping. In broad terms, the defences are false representation, non-disclosure and non-fulfilment of conditio

36、n precedent. Mr Poon SC and Mr Li adopt different approaches to the interpretation of the pleaded defence. To consider their submissions, it is necessary for me to quote the pleaded defence in full. The relevant pleadings are paragraphs 5(f), 5(g), 5(h), 6(c), 6(d), 6(e) and 7 of the Amended Defence

37、 and Counterclaim (“AD&CC”):“5(f) Edward Woo warranted and represented to Gary Ho that the Campus can be used to establish an institution there under the name “The East West Cultural Exchange Village” for the purpose of promoting education and cultural exchange. 5(g) As a further and/or alternative

38、proposal, Edward Woo warranted and represented to Gary Ho that the Campus can be used and/or developed as a hotel, spa, sports centre or residential buildings.5(h) In or about January 2003, Gary Ho went to inspect the Campus upon the arrangement of the 1st and 2nd Third Parties. At the time of the i

39、nspection, the Campus was not occupied and was vacant. As a result, the Defendants were led to believe that Edward Woos intention and/or proposal were genuine and that the Campus was in a state of vacant possession. 6(c) Prior to signing the Sale and Purchase Agreement and the Lecture Kit Shareholde

40、rs Agreement, Edward Woo failed to disclose the following matters to the Defendants:-(i) There are building certificates numbered 013088 and 014809 for the buildings erected on the Campus which would have shown that the buildings were used as teaching premises, premises for the staff and premises fo

41、r the students. According to the laws of China, when that being the case, the Campus together with the buildings cannot be mortgaged to the bank to obtain finance. In the premises, such building certificates constitute an encumbrance or restrictions on the Campus, in breach of Clauses 3.31(C) and (E

42、) of the Sale and Purchase Agreement and such defects have rendered the chance of UR Limited and 2nd Defendant being listed nugatory.(ii) Pursuant to the December Agreement on 2nd December 2002, CIDST had acquired certain rights including, inter alia, the right to occupy and to further develop the C

43、ampus. In breach of Clauses 3.17, 3.18, 3.31(B) and (F) of the Sales and Purchase Agreement, CIDST and its various divisions were still occupying the Campus at the date of signing of the Sale and Purchase Agreement and the Lecture Kit Shareholders Agreement.(iii) On 13 March 2003, UREDY had made an

44、application to the Economic Planning Bureau in the Yanjiao Development Zone Authority in the PRC and submitted a Campus Expansion Plan. 6(d)Edward Woo warranted and represented to the Defendants that the Campus can be used for various purposes including but not limited to establishing an institution

45、 and/or hotel, spas and other buildings. As Edward Woo well knew that their representations were untrue and their proposals could never be materialised due to the occupation of the Campus by CIDST, their representations were false and were made fraudulently and/or recklessly (“False Representations”

46、), with the view to induce the Defendants to enter into the Sale and Purchase Agreement and the Lecture Kit Shareholders Agreement. 6(e)The Defendants had relied on the False Representations and were induced by the False Representations to enter into the Sale and Purchase Agreement and the Lecture Kit Shareholders Agreement.7. By re