Industrial and Commercial Bank of China (Asia) Ltd v. Interpro Manufacturing Ltd and Others

CAMP 274/2019

[2021] HKCA 1500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 274 OF 2019

(ON AN INTENDED APPEAL FROM HCMP NO. 1619 OF 2016)

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BETWEEN

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Before:  Hon Poon CJHC and Barma JA in Court

Date of the 3^rd Defendant’s written submissions:  4 November 2019

Date of the Plaintiff’s written submissions:  18 November 2019

Date of Judgment:  11 October 2021

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J U D G M E N T

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The Court:

1.This is an application for leave to appeal by the 3^rd defendant against the costs order of Deputy High Court Judge MK Liu given on 18 July 2019 ordering that the costs of her summons dated 9 July 2018 be in the cause.  The 3^rd defendant contended that the appropriate order should be costs to her payable forthwith, to be taxed if not agreed.   

2.Briefly, the plaintiff commenced the proceedings below as a mortgage action under Order 88 of the Rules of the High Court.  The 1^st defendant had been liquidated and the 2^nd defendant had not participated in the proceedings.  The two subject properties had already been sold, leaving the claim between the plaintiff (as lender)  and the 3^rd defendant (as guarantor)  as the only outstanding matter.

3.By a letter dated 17 May 2018, for the reasons stated therein, the 3^rd defendant’s solicitors asked the plaintiff’s solicitors to advise if the plaintiff was willing to consent to the action being converted to a writ action.  When this request was not met, the 3^rd defendant took out a summons dated 9 July 2018 (“the Summons”)  for an order to the same effect and for costs in the cause.

4.At the hearing on 18 July 2019, the judge granted the relief in the Summons and ordered the proceedings to continue as if the case or matter had been begun by writ and that costs of the Summons be in the cause.  The 3^rd defendant sought leave to appeal against the costs order and the application was dismissed by the judge on 21 October 2019.

5.By a summons dated 4 November 2019, the 3^rd defendant renewed her application before this court.

6.Having considered the grounds of appeal, the judge’s reasons for refusing the 3^rd defendant’s application for costs and the parties’ submissions, we are of the view that it is reasonably arguable that the judge erred in not granting costs to the 3^rd defendant, when:

(1)  the plaintiff ought to have given consent to the 3^rd defendant’s request as per the letter of 17 May 2018; and

(2)  the 3^rd defendant succeeded on the Summons which was unreasonably opposed by the plaintiff.  

7.Accordingly, we will grant leave to appeal to the 3^rd defendant. We further order that the costs of the application for leave to appeal be in the cause of the appeal.

Mr Nick Luxton, instructed by Stephenson Harwood, for the plaintiff

Mr Edward Alder, instructed by Tanner De Witt, for the 3^rd defendant