Read the full judgment text of CACV 000217/1994 on BabelCite. This Court of Appeal judgment was delivered on 8 September 1995 before Mortimer JA, Liu JA, Ryan J.
Civil law – Mareva injunction – costs – indemnity costs – interlocutory application – ex parte application – duty of full and frank disclosure – material non-disclosure – oppressive and misconceived application – scope of evidence relevant to costs of interim application – plaintiff is solicitor and former shareholder/director of Versatile Advertising Company Limited – defendants are former marketing manager of Versatile and her husband – plaintiff obtained interlocutory injunction restraining defendants from assault, threats, harassment and molestation on 6 January 1993 in respect of non-commercial claim worth about $8,000 – plaintiff applied ex parte to Wong J for Mareva injunction on 16 May 1994 to freeze $650,000 to cover costs of action (about $320,000 already incurred and $330,000 estimated) – risk of dissipation based on defendants' Singaporean origin and proposed sale of Shatin flat – associated Versatile/District Court proceedings including default judgment set aside and orders criticising plaintiff and her firm not disclosed at ex parte hearing – Deputy Judge Cheung suspended Mareva on undertaking on 24 May 1994 – parties agreed to discharge Mareva and undertaking on 22 August 1994 and to confine hearing to costs – Woo J awarded defendants costs on indemnity basis on 12 December 1994 (so stated in opening) – leave to appeal granted by Bokhary JA on 22 November 1994 – first issue: whether Woo J was right in awarding indemnity costs – held by majority (Mortimer and Ryan JJA): yes – there had been material non-disclosure at ex parte hearing and the Mareva application was oppressive and misconceived – unique nature of non-commercial application for costs of small claim was not brought to the judge's attention – Liu JA dissenting: no – findings of motive and mala fides should not have been made on affidavit evidence and the District Court proceedings were not relevant surrounding circumstances to costs of the Mareva application – Scherer v Counting Instruments Ltd applied – second issue: whether Woo J's order can be otherwise supported – held by majority: yes, on grounds of material non-disclosure and oppressive application – held by Liu JA: no – none of the recognised special or unusual features (abuse of process, scandalous or vexatious proceedings, improper prosecution with malice or ulterior motive, affront to court) present – Overseas Trust Bank Ltd v Coopers and Lybrand applied – third issue: determination of motive and mala fides on affidavit evidence at costs stage – held: not appropriate – such issues to be left for trial – Tamco Electrical & Electronic (Hong Kong) Ltd v Ng Chung-fai Stephen, Columbia Picture Industries Inc v Robinson and Intergraph Corporation v Solid System CAD Services Ltd applied as to duty of full and frank disclosure and the stringent duty of applicants and their legal advisers on ex parte applications for Mareva injunctions – RSC Order 23 Rule 1 considered – Steamship Mutual Underwriting Association (Bermuda) Ltd v Thakur Shipping Co Ltd applied on the point that Mareva injunction is not available to a plaintiff who seeks only a permanent injunction – fourth issue: whether the Mareva application was oppressive and misconceived – held by majority: yes – claim was non-commercial, value of claim only $8,000 not disclosed, prospects of permanent injunction poor, $330,000 of costs sought to be frozen had not been incurred – appeal dismissed by majority – order nisi that costs of appeal follow the event and be taxed and paid forthwith – plaintiff to pay defendants' costs of Mareva application on indemnity basis.
Legal issues: Whether indemnity costs were properly awarded for the Mareva application · Whether the judge's order can be otherwise supported · Determination of motive and mala fides on affidavit evidence at costs stage · Whether the Mareva application was oppressive and misconceived
Outcome: Appeal dismissed by majority (Mortimer JA and Ryan JA; Liu JA dissenting). The order of Woo J awarding the defendants costs on an indemnity basis in the Mareva proceedings is upheld.
Cited by 2 cases