Chen Lingxia v. 中國金谷國際信託有限責任公司 and Others

HCA 2012/2018

[2019] HKCFI 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2012 OF 2018

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D E C I S I O N

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1.On 15 February 2019, this Court handed down its decision on the Plaintiff’s application for interlocutory relief against the named Defendants (“Decision”). The abbreviations in the Decision are adopted.

2.The 1^st Defendant (JI), the 3^rd to 6^th Defendants (JH and its nominees), and the 7^th Defendant (South Asia), have applied to vary the costs orders made in the Decision.

3.JI seeks to “clarify” and/or “rectify” the orders for costs, seeking orders that its costs of and occasioned by the Summons be borne by Chen and be paid forthwith, to be taxed if not agreed.

4.The costs orders made in the Decision, and in particular the order made in paragraph 55, are costs orders nisi under Order 42 rule 5B.  No clarification is necessary. 

5.The order made in paragraph 55 already provides for “the costs of and occasioned by the initial grant” of the Interim Injunctions.  The Summons was Chen’s application for the grant of the Interim Injunctions.  It is accordingly not necessary to vary the costs order nisi to state that the costs of and occasioned by the Summons should be paid by Chen.

6.By reason of the discharge of the Interim Injunctions for deliberate and material non-disclosure on Chen’s part, of the fact that she was prohibited from acting as a director, supervisor or senior manager of any company, and that to her knowledge, XS had received the written Notification from the Authority of such prohibition, I am prepared to vary the order nisi to order that the costs of and occasioned by the initial grant and the discharge of the Interim Injunctions pursuant to JH’s summons dated 13 September 2018 are to be borne by Chen and paid to the Defendants, with certificate for two Counsel, to be taxed forthwith if not agreed, and paid forthwith.  I will order that such costs are to be taxed and paid on indemnity basis.

7.On the part of the 3^rd to 6^th Defendants, they seek variation of the costs order nisi to provide for the costs ordered to be summarily assessed on an indemnity basis, payable forthwith. 

8.The costs of and occasioned by the Summons, and the application made by JH for discharge involved 3 hearings, different teams of lawyers and different grounds argued by the Defendants for the discharge and to oppose the continuation of the Interim Injunctions.  It would not in my view be appropriate in this case for the costs of the 3 camps, likely to be substantive, to be summarily assessed on broad brush basis.  I decline to make an order for summary assessment, but will order that the costs should be taxed forthwith and paid forthwith, with certificate for two counsel. 

9.By reason of the deliberate and material non-disclosure which led to the discharge of the Interim Injunctions, I further vary the costs order nisi to provide for the costs of and occasioned by the grant and discharge of the Interim Injunctions to be paid by Chen to the Defendants on indemnity basis. 

10.However, the application made by JH and its nominees on 5 March 2019 to amend their summons issued on 26 February 2019 for variation of the costs order nisi, to include orders for costs on an indemnity basis and to set out an alternative ground for review of the costs order should be paid by JH and the 4^th to 6^th Defendants to Chen, on the usual party and party basis.  They are the party seeking the amendment and the indulgence of the Court for leave to amend and include the additional variation.

11.On the part of South Asia, its application is for the same variation sought by the 3^rd to 6^th Defendants, namely for costs to be summarily assessed and payable forthwith, on indemnity basis.  For the same reasons set out in paragraphs 8 and 9 above, I make the same order for variation in favour of South Asia.

12.The costs of the Defendants’ applications for variation (save for the 3^rd to 6^th Defendants’ application for amendment, provided for in paragraph 10 above) are to be paid on the same basis, namely, by Chen on indemnity basis, to be taxed forthwith and paid forthwith.

Ms Cherry Xu, instructed by Wilkinson & Grist, for the plaintiff

Fangda Partners, for the 1^st defendant

Mr Gary Lam, instructed by Jones Day, for the 3^rd to 6^th defendants

Ms Sharon Yuen, instructed by Ambrose Lam & Co, for the 7^th defendant