YVES CHARLES EDGAR BOUVIER v. PASCAL MARIE MICHAEL DE SARTHE AND OTHERS

HCA 1822/2025

[2026] HKCFI 2483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1822 of 2025

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BETWEEN

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DECISION

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1.  There are two summonses before the court. The first summons is the 4^th defendant’s summons of 19 March 2026, to discharge the undertakings given by the 1^st to the 3^rd defendants, incorporated in Deputy High Court Judge Kent Yee’s order of 3 October 2025, insofar as those undertakings relate to the disclosure of the identity of the purchasers of artwork and the sellers and purchasers of reinvested artwork.

2.  There is also the 1^st to 3^rd defendants’ summons of 19 March 2026 to extend time for providing disclosure to seven days after the determination of the 4^th defendant’s discharge summons.

3.  The plaintiff seeks an immediate dismissal of the discharge summons and consequently the dismissal of the time extension summons.

4.  The 1^st to 3^rd defendants is neutral to the discharge summons, but has taken out its time extension application to preserve the status quo. The extension of time application is parasitic on the discharge summons.

5.  The 4^th defendant asked the court to give directions for the filing of evidence on the discharge summons and for the relevant disclosure by the 1^st to the 3^rd defendants to be stayed in the meantime.

6.  The court has had the benefit of comprehensive written submissions filed by the parties, including as to the factual and procedural background leading up to the current position. In the interest of time, I will not rehearse them in this decision.

7.  The relevant legal principles governing an application for discharge of an undertaking to court are not in dispute. They are set out in paragraphs 48 and 49 of the plaintiff’s skeleton and in paragraph 30 of the 4^th defendant’s skeleton.

8.  Relevantly, the situations include where there has been a material change of circumstances since the undertakings were given, which were not foreseeable at the time and which make compliance not feasible, and where an undertaking was obtained through fraud, misrepresentation or mistake. The relevant ground being relied on here is that of mistake.

9.  Mr Li, SC, also referred to the principle in the case law that an undertaking may be discharged where circumstances have arisen which make that course a proper one in the interest of justice.

10.  I have taken into account the submissions made by both parties, and at this hearing this morning, I have had considerable assistance from the oral submissions of all leading counsel of all parties. I have reached the conclusion that both summonses before me should be dismissed.

11.  These are my main reasons. First, it is unclear to me that there is a sound legal basis for the 4^th defendant to seek to discharge the undertakings given by the 1^st to the 3^rd defendants. Those defendants were sued in their capacity as the parties to whom the artwork was entrusted and the undertakings were given by those parties to the court. In my view, it should generally be for the party subject to the undertaking to apply for its discharge, not a third party. Accordingly, I have reservations as to whether the 4^th defendant has the necessary standing to make the present application. I should make it clear, however, that this is not the sole basis on which I decide the present application.

12.  Second, as a matter of fact, the 1^st to 3^rd defendants have already made an application under their summons of 28 November 2025 for a stay in discharge of its disclosure obligations. These submissions were considered but not accepted by Deputy High Court Judge Grace Chow, as indicated in her decision made on the 12 December 2025, who refused the interim stay sought. Her main reasons appear in paragraph 13 of her reasons for that decision to which I have made reference.

13.  It seems to me that whether the 4^th defendant has a valid complaint against the 1^st to the 3^rd defendants agreeing to disclose confidential information without the 4^th defendant’s consent is a matter between him and his agents.

14.  Third, the reality of adjourning the discharge summons is that a further extension of time would need to be granted to the 1^st to the 3^rd defendants to comply with their outstanding disclosure obligations.

15.  One should not lose sight of the fact that the original disclosure undertaken to be given by the 1^st to 3^rd defendants was on or before 4 pm on the 14 November 2025. Since then, multiple time extensions have been sought and obtained. By now, nearly six months has passed since the original deadline, and I take the view that there should not be any further delay in disclosure.

16.  Fourth, although Mr Peretti was not originally joined as a party to these proceedings, he has had ample notice of these proceedings. His previous solicitors were provided with submissions for the earlier hearing in December 2025 and also appeared by counsel in a hearing in March 2026 on the joinder application. However, the first indication of an application to discharge the undertakings by the 4^th defendant was by way of the current summons.

17.  Although Mr Peretti has only most recently been joined in these proceedings, I do not think it can be said that there was no previous opportunity for him to ventilate his concerns.

18.  Fifth, insofar as the discharge application is founded on alleged mistake, it seems to me that this is a matter for the 1^st to the 3^rd defendants to raise. Whether there was in fact any mistaken assumption or not would seem to turn on their state of mind and the relevant facts when the undertaking was given to the court in October 2025. However, there is no evidence from the allegedly mistaken party to found the present application.

19.  Sixth, I do not agree that there has been a material change of circumstance to warrant the discharge of the undertaking. The requirement is that of a material change of circumstances not foreseeable at the time which makes compliance not feasible. I am not satisfied these requirements are met. It appears that compliance with the buyer and seller disclosure undertaking still remains feasible.

20.  Moreover, given that the case of the 4^th defendant is that the 1^st to 3^rd defendants were agents, the fact that the 4^th defendant might later object to such disclosure due to lack of consent is a matter which was reasonably foreseeable at the time when the undertakings were given.

21.  To put it another way, there is no change of circumstance which fundamentally alters the basis on which the undertakings were originally given and which would make compliance unjust.

22.  In addition, I would observe that the question of buyer and seller confidentiality was previously raised by the 1^st to 3^rd defendants at the hearing before Deputy High Court Judge Grace Chow on the 12 December already. And in my view, the fact that a similar complaint is now raised by Mr Peretti, a different party, does not constitute a material change in circumstance.

23.  Seventh, on the question of whether the disclosure is ancillary to the preservation order, I have reminded myself that my function is not to reopen argument as to whether the undertakings should have been given in the first place. The fact of the matter is that they were given in clear and unequivocal terms.

24.  Eighth, on the implied undertaking issue, initially I had considered requiring an express undertaking from the plaintiff to the effect that all documents and information disclosed by the 1^st to 3^rd defendants pursuant to their undertakings and all related future disclosure would not be used by the plaintiff otherwise than for the purpose of the present proceedings.

25.  Mr Manzoni SC, submitted that such an order could be made by way of the court expressly as a matter of case management. Ms Tong SC, submitted that as a matter of law, the undertakings were given by the 1^st to 3^rd defendants without compulsion and voluntarily and therefore the collateral use undertaking does not apply. Reference was made by her to the Court of Appeal decision in Shun Kai Finance. In addition, she pointed out that there needs to be justification for an express order to that effect being made.

26.  Having considered the submissions of the parties and mindful that I am only dealing with the matter on a summons day, I have decided to leave this question open at the present stage both on the law and on the facts. For the reasons I have stated above, it is sufficiently clear to me that both summonses should be dismissed without an express order prohibiting collateral use.

27.  It would therefore be strictly unnecessary for me to go further than this in reaching my decision. I should make it clear to all of the parties that no finding is made on whether the implied undertaking applies to disclosure already given or to be given or whether there is justification for such further order. I expressly leave it open to the parties to address the court on these issues at a later stage should the need arise or make an application to court for such an express order to be included.

28.  So for these reasons, I dismiss both the discharge and the extension of time summons. I should record my gratitude to the assistance that I have received from all counsel before me. I will hear the parties on costs.

Discussion re costs

29.  On the 1^st to the 3^rd defendant’s extension of time summons, I will make no order as to costs. On the 4^th defendant’s summons to discharge dated 19 March 2026, I will order that the costs of that summons be paid by the 4^th defendant to the plaintiff to be taxed if not agreed, with certificate for two counsel.

30.  In case any ambiguity arises, I make it clear that for the purpose of taxation, Ms Au’s time in preparation of the skeleton arguments should be recoverable in taxation. I decline to make an order for indemnity costs.

Discussion re timing of compliance

31.  What I will do in light of the submissions made by the parties on this timing issue is I will grant an order that time for the 1^st to 3^rd defendants to comply with paragraph 1 of the order of Deputy High Court Judge Grace Chow dated the 2 March 2026 be extended to 4 pm on the 17 April 2026.

Ms Sara Tong SC leading Astina Au (by written submissions only), instructed by Tanner De Witt, for the Plaintiff

Mr Charles Manzoni SC, instructed by Howse Williams, for the 1^st to 3^rd Defendants

Mr Laurence Li SC leading Sik Chee Ching, instructed by Adrian Elms & Co, for 4^th Defendant

HCA 1822/2025

[2026] HKCFI 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1822 OF 2025

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REASONS FOR DECISION

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Introduction and Background

1.  On 12 December 2025, as Summons Judge, I had before me 4 Summonses for this action. Having heard submissions from counsel, I made certain orders and directions in respect of the Summonses. My main reasons are set out below.

2.  First, by Inter Partes Summons dated 29 September 2025 (“Inter Partes Summons”), the Plaintiff (“P”) sought against 1^st to 3^rd Defendants (collectively, “Ds”) pending trial: (a) a preservation order / proprietary injunctions in respect of the Artworks, Reinvested Artworks as defined therein (collectively “the Subject Artworks”) and the proceeds out of their sale, transfer and/or disposal (“the Proceeds”); (b) various disclosure orders in relation to inter alia the whereabouts of and cash flow report of the sales and/or other dealings with the Subject Artworks; (c) order for delivery up of the Subject Artworks and payment into court of the Proceeds; and (d) inspection of the Subject Artworks.

3.  Ds had at the first call-over hearing of the Inter Partes Summons on 3 October 2025 before DHCJ Kent Yee already: (a) undertaken to preserve, save for items 7 and 11, the Subject Artworks and the Proceeds (“the Preservation Undertaking”); and (b) undertaken to make the disclosure sought by 14 November 2025, (“the Disclosure Undertaking”) for which time for compliance was subsequently extended by me to 28 November 2025.

4.  By the Order of DHCJ Kent Yee, it was explicitly stated inter alia that the hearing on 12 December 2025 would be a second call-over and if the disputes between parties cannot be resolved within 30 minutes then parties should write to the court with directions with a view to vacate the hearing and adjourn the Inter Partes Summons to a substantive hearing.

5.  By letter from Messrs Tanner de Witt dated 9 December 2025, solicitors for P took the view that their intention to seek compliance with the Disclosure Undertaking and delivery up of the Subject Artworks can be dealt with within 30 minutes. Messrs Howse Williams, solicitors for Ds, on the same day had written to the court, suggesting the hearing be a directions hearing. Nonetheless from the Skeleton Submissions filed by Ms Cheung and Ms Lau, counsel for Ds, on 9 December 2025, it was clear that Ds were seeking more than directions.

6.  Parties were agreed to the continuation of the Preservation Undertaking until determination of this action after trial or further order, save for Item 10 which P no longer claims against Ds. However, Ds asked for a discharge or alternatively, stay of the Disclosure Undertaking whereas in P’s Skeleton Submissions, Ms Tong SC leading Ms Au, counsel for P, sought compliance of the Disclosure Undertaking and furthermore, an order for similar disclosure in respect of Items 7 and 11 by 19 December 2025. As the issue of disclosure was also raised in another Summons taken out by Ds, this is further discussed below.

7.  P also sought an order for delivery up of the Subject Artworks and payment of the Proceeds into court. Given that P’s reply affirmation, the 2^nd Affirmation of Mr Bouvier (“Bouvier 2^nd”) was only filed out of time on 8 December 2025, (which was the matter of another Summons before me) and runs to 131 pages with exhibits, Ds clearly had not had sufficient time and a fair opportunity to consider and respond substantively.

8.  Thus I took the view that these outstanding matters in relation to the Inter Partes Summons should be adjourned for substantive argument and leave be granted to file further evidence in response, and as such, could not be dealt with within the scheduled 30 minutes’ hearing. Notwithstanding the abled submissions of Ms Tong, I was not prepared to deal with the application for the further disclosure in relation to Items 7 and 11 nor the issue of delivery up and payment in.

9.  Whilst Ds also sought an order for an affirmation to be made by P to explain the withdrawal of the claim in respect of Item 10 covering: detailed reasons for disclaiming Item 10, the change of understanding of the facts which led to the change of position, reasons for not informing Ds and the Court prior to 3 December 2025 and if any parts of the Affirmation of Bouvier are inaccurate and require rectification, no legal basis for doing so was given and I could not see how it was necessary for the determination of the outstanding issues. Some explanation has already been given in Bouvier 2^nd. In so far it was said the explanation is inadequate and unsatisfactory, impacts on his credibility or the reliability of his evidence or the asserted strength of P’s case that he is the owner of all the Subject Artworks, these are matters for submissions at the substantive hearing of the Inter Partes Summons.

10.  Second, by Summons dated 21 November 2025 (“SOC EOT Summons”), P sought an extension of time to file the Statement of Claim (“SOC”) in this action. This was objected to by Ds who were only prepared to allow a further extension of time to 7 days on an “unless basis”. Ds had previously agreed to an extension of time to P for 21 days. An extension of time up to 21 November 2025 was then granted by Order of Master Thomas Kwong dated 28 October 2025. Whilst the SOC EOT Summons sought for an extension of time to 19 December 2025, at the hearing before me, P sought an extension of time until 28 days following determination of the Interpleader/Joinder Summons (as defined and considered below).

11.  Third, by Summons dated 28 November 2025 (“Interpleader/Joinder Summons”), Ds sought interpleader relief or alternatively, joinder of Mr Peretti as the 4^th Defendant and meanwhile, a stay of these proceedings including Ds’ obligations to comply with the Disclosure Undertaking and leave to be discharged from the Disclosure Undertaking. In respect of the interpleader or joinder application, parties were agreed that it should be adjourned for substantive argument. As for the issue of discharge or stay of the Disclosure Undertaking as sought in the Interpleader/Joinder Summons, this should be considered together with this issue in the Inter Parte Summons which was adjourned for substantive argument. Accordingly, I ordered that the outstanding issues in the Inter Parte Summons (i.e. whether Ds should be released from the Disclosure Undertaking or it be stayed, there be disclosure orders in respect of Items 7 and 11, payment of the Proceeds into court, inspection or delivery up of the Subject Artworks) and the Interpleader / Joinder Summons should be adjourned for substantive arguments to be heard together at a hearing (with 3 hours reserved) to be fixed in consultation with counsel’s diaries. Counsel were agreed that there should be an early hearing date for the adjourned hearing.

12.  As I saw it, the only issue that required determination was whether in the interim period (i.e. before the substantive hearing) the Disclosure Undertaking should be stayed. Essentially, Ds were seeking “interim-interim” relief, and it is trite such relief is meant to be an “urgent temporary stop-gap measure and the circumstances were such that the court has to do practical justice on the balance of fairness even though it may not have sufficient time to consider the matter fully”: see China Shanshui Cement Group Limited & Others v Zhang Caikui & Others[2018] HKCA 409 at §13.

13.  I was not satisfied that the circumstances warranted the granting of a discharge / stay on the balance of fairness. Having agreed for the Preservation Undertaking to be continued until trial and it has not been shown that P has no serious issue to be tried on the merits (at the very least in relation to the Subject Artworks less Items 7 and 11), without the disclosure, the Preservation Undertaking cannot be properly enforced. On the other hand, Ds had been given time to seek legal advice and on that basis an extension of time granted for compliance with the Disclosure Undertaking to 28 November 2025. Even up to the hearing before me, there was no evidence or submissions that there is any legal impediment to compliance with the Disclosure Undertaking and the submissions from the Bar table that there will be irreparable harm to Ds remained a bare assertion. Besides, even if it was feared that disclosure is wrongful or given to the wrong owner and legal proceedings are commenced against Ds, given P’s cross-undertakings as to damages, I saw no real prejudice to Ds. As for Mr Peretti’s objections to Ds’ disclosure, until the determination of the joinder application, Mr Peretti is not a party to these proceedings and has no locus to object. His objections were known to Ds months ago. Balancing where justice lies and fairness demands, I took the view that the status quo should be maintained. I therefore ordered that the disclosure pursuant to the Disclosure Undertaking should be provided by Ds on or before 19 December 2025.

14.  However, I did not agree, as submitted by Ms Tong, that the Interpleader/Joinder Summons should be adjourned until after the Disclosure Undertaking is properly complied with and that the SOC should not be filed until after the determination of the Interpleader/Joinder Summons. Given that the disclosure relates to the enforcement of the Preservation Undertaking in relation to P’s claims against Ds, and P had chosen not to sue Mr Peretti (and indeed in P’s Skeleton Submissions, at the outset P’s position was stated: “Regardless of Peretti’s position and whether he will join as a party to this action, it is necessary to secure and preserve the Artworks, the Reinvested Artworks and the Proceeds pending the determination of this Action”), whereas the interpleader/joinder application is made by Ds to bring in Mr Peretti as a party, I could not see how they were intertwined.

15.  Moreover, it would be of assistance to the court in considering whether Mr Peretti should be added as a party under O.15, r.6(2) of RHC[1], either because his rights against or liabilities to any party to this action in respect of the subject matter of the action may be directly affected by any order which may be made in this action, or he has some interest which in some way directly related to the subject matter of this action, for P’s claims to be clearly set out in the SOC. I did not agree with the submissions that there will be a wastage or duplication of costs if the action is stayed or SOC requires further amendments. Accordingly, I ordered that the Interpleader/Joinder Summons should be adjourned for substantive argument together with the Inter Partes Summons to a hearing at the earliest available date with 3 hours to be fixed in consultation with counsel’s diary. Upon further discussion with counsel, with the intervening Christmas holidays and given the adjourned hearing would be some time away, it was agreed an extension of time is granted to P to file the SOC on or before 16 January 2026 on an unless basis. I also ordered fixed costs of HK$1,040 for the EOT SOC Summons be paid by P to Ds.

16.  Fourth, by Summons dated 2 December 2025 (“Reply Affirmation Summons”), P sought an extension of time to serve a reply affirmation in relation to the Inter Partes Summons. As mentioned, Bouvier 2^nd has now been filed on 8 December 2025 for which retrospective leave is being sought. When it was confirmed at the hearing before me on 20 November 2025 that Ds would not be filing any further affirmation in opposition, I had ordered P to file its reply affirmation on or before 2 December 2025 (which a partner from Messrs Tanner De Witt appearing before me confirmed that P would able to do so), and the extension was on the basis that would enable sufficient time for parties to take a view and jointly inform the court whether the hearing before me scheduled for 30 minutes could be disposed of by consent or had to be adjourned to a substantive hearing. Having heard submissions of counsel, I granted retrospective leave to file Bouvier 2^nd. Further, leave was granted to Ds to file an affirmation in response to Bouvier 2^nd within 28 days as sought (i.e. 9 January 2026) with leave to P to file a final affirmation in reply within 21 days thereafter (i.e. 30 January 2026).

17.  Costs of the hearing was reserved.

Ms Sara Tong SC leading Ms Astina Au, instructed by Messrs Tanner De Writ, for the Plaintiff

Ms Elizabeth Cheung and Ms Candice Lau, instructed by Messrs Howse Williams, for the 1^st to 3^rd Defendants