Achieve Goal Holdings Ltd v. Zhong Xin Ore-material Holding Co Ltd

HCA 1987/2005

[2023] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1987 OF 2005

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BETWEEN

(By original action)

AND BETWEEN

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(By counterclaim)

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DECISION ON COSTS

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1.In this Decision on Costs I shall adopt the abbreviations used in my Judgment dated 26 August 2022 (the “Judgment”).

2.By the Judgment, I granted an order restraining Angola from holding out as a shareholder of Zhong Xin, and from continuing with or prosecuting the Xi’an Proceedings (as defined in the Summons)  against Bai Jun.

3.In paragraphs 70 and 71 of the Judgment, I made a costs order nisi that Angola do pay Bai Jun the costs of and occasioned by the Summons, such costs are to be taxed on the indemnity basis if not agreed.

4.On 9 September 2022, Bai Jun issued a summons for, inter alia, a variation of the costs order nisi by adding that there be a certificate for 2 counsel.

5.In Power Securities Co Ltd v Sin Kwok Lam and Others [2020] HKCFI 344 at §17, Coleman J put the relevant test succinctly as follows:

“… The first question is whether it was necessary or proper to instruct a leading counsel, having regard to various factors including (but not limited to)  the nature, difficulty, complexity or novelty of the case, specialised knowledge required, importance to the client and generally, and whether the other side has instructed a leader. The second question is whether it was necessary or proper for a junior counsel also to be instructed, for reasons which might include assisting in the proper preparation of the case, with court proceedings, and with carrying out legal research on difficult or novel questions of law.”

6.Having considered all the circumstances of this case, I am satisfied that such circumstances make it appropriate in the exercise of my discretion to award a certificate for 2 counsel.

7.In arriving at my decision, I have taken into account, in particular, the following:

(1)  This case involves complicated factual background dating back to 2004 involving many decisions at different levels of the courts both in Hong Kong and the Mainland (see: paragraphs 4 to 41 of the Judgment).

(2)  The nature of the application under the Summons: namely, for an anti-suit injunction to restrain proceedings in the Xi’an court.

(3)  Shares in Zhong Xin are effectively the only asset of Bai Jun.  Angola cannot deny the significant objective value at stake: the Relevant Shares are 50% of the shares in Zhong Xin which held a 70% interest in CLB which was said to be worth over RMB 1.7 Billion in 2008.

(4)  As regard the junior counsel, Mr Clark Wang, he has been deeply involved in these proceedings at both the first instance and the appeal stages.  It is reasonable for Bai Jun to engage him for the proper preparation of the case.

8.For all the above reasons, I make the following costs order, in variation from my own original nisi order:

(1)  The 2^nd defendant (by Counterclaim)  do pay the 2^nd plaintiff (by Counterclaim)  the costs of and occasioned by the Summons dated 15 February 2022, such costs are to be taxed on the indemnity basis if not agreed; and

(2)  There be a certificate for 2 counsel for the 2^nd plaintiff (by Counterclaim).

9.In the light of my conclusions, the 2^nd defendant (by Counterclaim)  shall also pay the costs of the costs variation application on a party-and-party basis, such costs are to be taxed if not agreed.

Written submissions by Mr Clark Wang, instructed by Messrs Kwok, Ng & Chan, for the 2^nd plaintiff (by Counterclaim)

Written submissions by Messrs So, Lung and Associates, for the 2^nd defendant (by Counterclaim)