Fast Track Holdings Ltd v. Hong Kong Securities Clearing Co Ltd

HCA 2480/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2480 OF 2016

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D E C I S I O N

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1.In the present case, the plaintiff does not dispute that it is liable to pay the costs sought by the applicant under paragraphs 1 and 2 of the Summons.  The issue is the basis of taxation.

2.The usual costs order to be made in favour of an innocent third party adversely affected by an interlocutory injunction is that he is entitled to have the costs taxed on an indemnity basis, save that notwithstanding Order 62, rule 28 (4A) of the Rules of the High Court, he shall establish that his costs were reasonably incurred and were reasonable in amount [See: Project Development Company Limited v KMK Securities Limited [1982] 1 WLR 1470].

3.Mr Rogers submits that the applicant should be entitled to taxation on a full indemnity basis because of the circumstances of this case, particularly that the interlocutory injunction in the present case should not have been obtained in the first place.

4.In my view, there is insufficient reason for this court to depart from the usual costs order to be made in favour of an innocent third party.  The proceedings by the plaintiff cannot, in my view, be said to be an affront to the court, so as to make it “appropriate” to order taxation on a full indemnity basis.

5.For the above reasons, I make an order in terms of paragraphs 1 and 2 of the Summons, save that the costs ordered are to be paid forthwith and to be taxed on an indemnity basis, save that notwithstanding Order 62, rule 28 (4A) of the Rules of the High Court, the applicant shall establish that its costs are reasonably incurred and reasonable in amount.

Mr Jacky Lam, instructed by Kok & Ha, for the plaintiff

Mr Martin Rogers of Davis Polk & Wardwell, for the applicant