Pt Ark v.s. Teknik v. The Owners and/or Demise Charterers of the Ship and Others

HCAJ 109/2017

[2019] HKCFI 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 109 OF 2017

___________________________

Admiralty action in rem against: The ship or vessel “TANGKAS” (Indonesian Flag) (IMO Number 9072252)

___________________________

_______________

D E C I S I O N

_______________

1.There are 2 applications before the court. Dealing firstly with the Plaintiff’s application for payment out of the judgment sum of US$14,751 from the security paid into court by the Defendants on 28 November 2017, the arguments are well-balanced. However, I have decided to allow the application for the following reasons :

(1)  Although there appears to be some substance in the Defendants’ allegation of fraud practised by the Plaintiff in obtaining the judgment in question regarding its authority to bring this action, there is no action on foot to set aside the judgment and the evidence relied upon by the Defendants has not been properly notarized and filed.

(2)  Further, there is no stay of execution application before the court.

(3)  There is certainly force in the Defendants’ submission that they may have difficulty recovering the money from the Plaintiff in the event that the judgment is successfully set aside given, eg, the failure of the Plaintiff to meet the security for costs ordered against it thereby resulting in the strike out of the remainder of its action.  However, this court has to balance the risk against the entitlement of a successful litigant to have the fruit of its success without delay.

(4)  Finally, in respect of the risk in question, this court has to bear in mind that the amount of the judgment is relatively modest.

2.I further order that after the payment out of the judgment sum, the balance of the security, subject to the retention of a sum of HK$150,000 on account of the costs ordered in favour of the Plaintiff, should be released to the Defendants.

3.In respect of the Defendants’ application to strike out the Plaintiff’s claim and set aside the judgment for want of authority on the part of the Plaintiff, this court is functus after the sealing of the judgment on 17 December 2018.  On the authorities of Lau Kak v Cheung Mo-kit [1995] 2 HKLR 470 and Moores Rowland and Anr v Grant Thornton and Ors, unrep, HCA 1126/2010 & HCA 735/2010, 8 June 2012, the proper procedure for challenging the judgment is by way of another action.  In the premises, this application is dismissed.

4.I shall hear the parties on costs.

Mr Sam Tsui, of Tsui & Co, for the Plaintiff

Mr Christopher Chan, of Holman Fenwick Willan, for the Defendants