Song Xuan v. Xu Zhong Ping

HCA 1687/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1687 OF 2017

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Before:  Deputy High Court Judge R Pang SC in Chambers

Date of Hearing: 5 December 2017

Date of Ruling:  5 December 2017

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RULING

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1.This is the plaintiff’s application to withdraw its application for a Mareva injunction, a worldwide Mareva to the tune of over $200 million on the basis of various allegations of fraud against the defendant. The plaintiff and the defendant are sued in their personal capacities. The plaintiff filed her application for withdrawal of the application for an injunction late in the day on 1 December, Friday, before the hearing today, 5 December. The question that I have to decide is whether or not costs of this application should be summarily assessed or whether there should be a direction for taxation.

2.Secondly, if it is to be summarily assessed, on what basis, whether it should be indemnity basis or party and party basis.  And thirdly, the final issue is the actual amount of costs that I should order on the parties, of course, being in agreement that the costs of this application should be to the defendant.

3.So on the first issue, I am persuaded by Mr Wong SC that this case is a suitable case for summary assessment.  The injunction application having fallen by the wayside, the main action can proceed.  The cost of this injunction application is distinct from or can be separated from the cost of the main action; and also for the various matters raised by Mr Wong in his argument and in the authorities relied on, I consider that this is a suitable case for summary assessment.

4.On the second issue, the basis of assessment, I do not intend to go into the merits of the action itself, nor should I.  However, I do consider that there are matters which should have been considered by the plaintiff before taking out its application for an injunction, and one which sticks out is the delay between the time when the cause of action arose and the taking out of proceedings in Hong Kong. This is not to say that this will in all cases bar relief, but it is an indication which militates against any allegation of an imminent risk of dissipation which is what a Mareva injunction is for.  So for that basis and for various other matters which were raised by Mr Wong, I do consider this is an appropriate case where I should exercise my discretion on costs on a higher than a party-and-party basis.

5.Now, of course the basis of taxation  rather indemnity basis, party and party basis, common fund and so on, are all basis for taxation whereas summary assessment is a broad brush approach.  So although I bear in mind what Mr Wong submits about the basis of taxation, I am not necessarily bound to apply the principles of taxation on an indemnity basis.  Again, since this is a broad brush approach, I do not intend to actually conduct a mini taxation and go into each and every part of the statement of costs.

6.Doing the best I can on the materials before me, I would assess the costs of this application at $680,000.  I do not propose to give a breakdown as I said this is a broad brush approach.  I do particularly consider that these were serious allegations which were made serious allegations of fraud which have now been withdrawn and this application should not have been made in the first place.

7.Costs of and incidental to the inter partes summons filed on 18^th July 2017 be to the Defendant payable by the Plaintiff forthwith, assessed on a summary basis at $680,000 .

Ms Gigi Liu, instructed by Huen & Partners, for the plaintiff

Mr Anson Wong SC and Mr Lai Chun Ho, instructed by Nixon, Peabody CWL, for the defendant