Executive Summary: Key Legal and Evidentiary Issues

• Atom Holdings obtained ex parte Anton Piller and Mareva orders against former director Victor Su over alleged cryptocurrency misappropriation.

• Mr. Su challenged the orders, alleging material non-disclosure, particularly around the reliability and procurement of witness evidence.

• The chambers judge held the omitted information was immaterial and would not have changed the outcome.

• The judge found the evidence linking Su to the alleged asset diversion compelling, even without the disputed interview testimony.

• On appeal, the Court upheld the discretionary decision to maintain the orders and dismissed arguments of legal error.

• No damages were awarded, but the successful respondent likely received costs of the appeal under standard rules.

Facts and outcome of the case

Background and context

This case arises from the collapse of the AAX Group, a cryptocurrency platform operated through a network of international entities under the control of Atom Holdings, a Cayman Islands-based company. Following the group’s failure in late 2022, users were unable to withdraw substantial crypto assets. In response, Atom Holdings entered court-ordered liquidation, and the court-appointed joint liquidator, George Kimberley Leck, began efforts to trace and recover missing assets.

Victor Su (also known as Weiyi Su), a former director of Atom Holdings and resident of West Vancouver, became the focus of these recovery efforts. He was alleged to have diverted approximately US$16.74 million in digital assets and was arrested in Hong Kong in July 2024. The respondents (Atom Holdings and Leck) initiated proceedings in the Supreme Court of British Columbia, seeking and obtaining ex parte orders — including an Anton Piller order and a Mareva injunction — to search, preserve evidence, and freeze Su’s assets.

The proceedings below

The Anton Piller order was granted on April 4, 2024, and executed on April 5. The Mareva injunction followed shortly after on April 8, as the respondents filed a civil action against Su. The evidence submitted included affidavits by a cybersecurity expert, Matthew Devost, who linked Su to the unauthorized transfer of AAX assets. Devost’s evidence also included statements from Peter Lin, AAX’s founder, who implicated Su during a controversial interview.

Su later applied to set aside both orders, arguing that the respondents had failed to disclose material facts at the ex parte hearings — particularly Devost’s coercive tactics in obtaining Lin’s statements and portions of the Lin interview that cast doubt on Su’s exclusive responsibility. The chambers judge dismissed Su’s application, finding that the non-disclosed information was immaterial and that the orders would have been issued regardless of the disputed testimony. Even if the information had been material, the judge stated he would have reissued the orders based on new, post-order evidence of Su’s conduct, including false affidavits and asset dissipation.

The appeal and court's reasoning

Su appealed, alleging errors of law in the chambers judge’s handling of the duty of full disclosure at ex parte hearings. He argued that the judge applied too high a threshold for materiality and failed to appreciate how the omitted facts could have influenced the court’s assessment of Devost’s credibility. The Court of Appeal rejected these arguments.

Writing for a unanimous panel, Chief Justice Marchand held that while some language in the chambers decision may have implied a higher threshold, the reasons as a whole demonstrated a proper understanding and application of the legal standard. The judge had recognized the duty of full and frank disclosure and found the disputed information would not have affected the outcome. The court also emphasized that the test for materiality requires a practical assessment of whether the omitted facts might have mattered — but that in this case, the overwhelming evidence against Su rendered the omitted material immaterial.

The appeal court further supported the chambers judge’s discretion in maintaining the orders or reissuing them on updated evidence. It rejected Su’s contention that the court improperly relied on unreliable or prejudicial evidence. No damages were awarded, and while the decision does not mention costs explicitly, standard practice suggests the successful respondent, Atom Holdings, is entitled to costs of the appeal.

Conclusion

The Court of Appeal upheld the chambers judge’s findings and discretionary decisions, dismissing Victor Su’s appeal. The orders against him — preserving evidence and freezing assets — remain in place, as the case continues through asset recovery proceedings across multiple jurisdictions.