China Npl Holdings Pte Ltd v. Mo Haidan and Others

HCA 513/2019

[2020] HKCFI 1642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 513 OF 2019

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Before:  Deputy High Court Judge Sherrington in Chambers

Date of 1^st Defendant’s Written Submission on Costs:  30 June 2020

Date of Plaintiff’s Written Submission in Reply on Costs:  10 July 2020

Date of Decision on Costs: 24 July 2020

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DECISION ON COSTS

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1.There is before the court an application by the plaintiff (“P”) to vary the costs order I made herein dated 3 June 2020.

2.In that decision, I ordered costs in favour of the 1^st Defendant (“D1”) with a certificate for two counsel which was consistent with my finding that P had failed to demonstrate a good, arguable case in Hong Kong justifying the continuation of the Mareva injunction made on 27 March 2019 and continued on 12 April 2019.

3.P’s application is supported by a 3^rd affirmation of Yue Wing Man dated 15 June 2020 which makes it clear that the basis of its application is that, since my finding was that once the Retrial Orders had been made in the PRC there was no res judicata between the parties, and thus the original judgments, the subject of the Retrial Orders, were not final and conclusive, until that time P had made out a good, arguable case and was entitled to a Mareva injunction and so should have its costs both of the ex parte Mareva application and the discharge summons up to the date the Retrial Orders were made.

4.It is worth noting that P seeks to appeal my original decision and maintains in that connection that the Retrial Orders had no such effect as it now contends.

5.D1, by way of response, says that it has always been its case that the original judgments of the local PRC court are not final and conclusive, and that it would be entitled to Retrial Orders.  In those circumstances, it is submitted that applying the general principle, accepted by P, that the court has a wide discretion in allocating costs between the parties, as summarised most recently by Hon Au JA in Building Authority v Appeal Tribunal (Buildings) [2020] HKCFI 1245 at §7, the court’s original decision was justified and should not be varied.

6.P submits in reply that my finding was that until the Retrial Orders were made, D1 had no discernible defence to its case that the judgments of the local court in the PRC were final and conclusive, and thus it should be entitled to a variation of the costs order, but that I think is overstating the position and moreover I specifically noted in my decision, and indeed again in my refusal of the application for leave to appeal my decision, that I had not ruled on the question of dissipation of assets which therefore remains to be considered were P to be successful in its application for leave to appeal and subsequently in the appeal itself.

7.In all of the circumstances, I am satisfied that it is just and fair that the costs should follow the event in this case and so I dismiss P’s application and I order it to pay D1’s costs of this application to be taxed if not agreed.

Written submissions by Mr Sebastian Hughes, instructed by Munros, for the plaintiff

Written submissions by Mr Sunny Chan, instructed by Yan Lawyers, for the 1^st defendant