Daimler Ag (Formerly Known As Mercedes Benz Ag) v. Helge Herbert Leiduck, Appointed By Order To Represent the Estate of Herbert Heinz Horst Leiduck, Deceased and Another

HCA 4089/1994

[2023] HKCFI 3099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 4089 of 1994

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D E C I S I O N

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1.In this decision, unless otherwise stated, (1) the definitions and abbreviations adopted in my earlier decision herein dated 31 March 2023 (“31.3.2023 Decision”) shall continue to be used and (2) references to numbered paragraphs in square parentheses are to those of the 31.3.2023 Decision.

2.To recap, by the 31.3.2023 Decision:

(1)  I dismissed the (defendants’) Inquiry Summons (“Dismissal Order”) (see [91]) and further ordered the defendants to pay the plaintiff all the costs of and occasioned by the Inquiry Summons save for the costs incurred after 16 April 2014 and before 23 February 2016, which costs shall (a) include the costs of the VCF application before both the Court of First Instance and the Court of Appeal and the costs of the Dismissal Application and (b) be taxed, if not agreed, on an indemnity basis with certificate for 2 counsel (“Costs Order”) (see [94], [96] and [97]).

(2)  I also allowed the (plaintiff’s) Disclosure Application (“Disclosure Order”) with party and party costs. The Disclosure Order obligates the defendants to disclose the identity and certain other specified details of the third party funding the defendants’ costs of the proceedings under the Inquiry Summons (see [105]).

(3)  I further made an order nisi that there be no order on the New Evidence Application, the Hearsay/Expungement Applications and the Security for Costs Application (“No Order Order”) (see [106]).

3.The defendants have since appealed against the Dismissal Order and the Costs Order, without any leave requirement, by notice of appeal filed on 9 May 2023 under CACV 140/2023 (“Dismissal Appeal”).

4.Aside from the Dismissal Appeal, the 31.3.2023 Decision has also given rise to the following applications made by 4 summonses between the parties:

(1)  by the defendants by their first summons dated 13 April 2023 for leave (“Disclosure Leave Application”) to appeal against the Disclosure Order (“Proposed Disclosure Appeal”);

(2)  by the defendants by a second summons dated 13 April 2023 for variation of the No Order Order to orders in favour of the defendants on the New Evidence Application, the Hearsay/Expungement Applications and the Security for Costs Application;

(3)  by the defendants by a third summons dated 13 April 2023 for:

(a)  stay of execution of the Disclosure Order pending the final determination of both the Dismissal Appeal and the Proposed Disclosure Appeal (if leave is granted); and

(b)  adjournment of the hearing of the Disclosure Leave Application and the Defendants’ application to vary the No Order Order pending the final determination of the Dismissal Appeal;

(4)  by the plaintiff by summons also dated 13 April 2023 and, as subsequently amended by consent pursuant to the court’s direction given on 9 May 2023, for, inter alia[1]:

(a)  in the event of an unsuccessful Dismissal Appeal, variation of the No Order Order to an order for costs of the New Evidence Application, the Hearsay/ Expungement Applications and the Security for Costs Application on an indemnity basis and with certificate for 2 counsel in favour of the plaintiff;

(b)  in the event of a successful Dismissal Appeal, variation of the No Order Order to orders on the New Evidence Application, the Hearsay/Expungement Applications and the Security for Costs Application in the plaintiff’s favour with costs against the defendants on an indemnity basis and with certificate for 2 counsel; and

(c)  an order for compliance with the Disclosure Order by the defendants and/or their solicitors within 28 days.

5.The first matter that is hotly contested between the parties is whether the said post-31.3.2023 Decision applications should be determined now or later, if necessary, after the Court of Appeal’s decision on the Dismissal Appeal.

6.After giving this matter my very anxious consideration, particularly the tortuous procedural history of the Inquiry Summons and the acrimonious litigation behaviour displayed by the parties, I am reluctantly persuaded by Mr Horace Wong SC (with him Mr Clark Wang), counsel for the defendants, that my rulings on the Disclosure Leave Application and, if necessary, the New Evidence Application, the Hearsay/Expungement Applications and the Security for Costs Application should be reserved until after the resolution of the Dismissal Appeal.

7.First, it is apparent that the outcome of the Dismissal Appeal, depending on which way it goes, may impact upon the necessity of a ruling on each of the Disclosure Leave Application and the New Evidence Application, the Hearsay/Expungement Applications and the Security for Costs Application.

8.Second, having regard to the conduct of the proceedings under the Inquiry Summons since February 2013 when the matter first came before, I think it is not unfair for me to describe the parties as overly trigger-happy and antagonistic. I certainly anticipate the unsuccessful party to seek leave to appeal, firstly from me and then (if necessary) from the Court of Appeal, against my decision on each of the New Evidence Application, the Hearsay/Expungement Applications and the Security for Costs Application. Likewise, I would not at all be surprised if the defendants should renew the Disclosure Leave Application before the Court of Appeal, if leave is not granted by me.

9.That being the case, an orderly disposal of the various post-31.3.2023 applications is, for them to be determined altogether after the outcome of the Dismissal Appeal is known so that, if necessary, all applications for leave to appeal before the Court of Instance and thereafter the Court of Appeal can be made and dealt with in one go.

10.For the above reasons, I rule as follows:

(1)  There shall be an order in terms of paragraphs 3 and 4 of the plaintiff’s summons dated 13 April 2023.

(2)  This court’s decisions on the Disclosure Leave Application and the parties’ said respective application to vary the No Order Order, including costs, shall be reserved for 4 weeks from the determination of the Dismissal Appeal.

(3)  Execution of the Disclosure Order shall be stayed pending the determination of the Dismissal Appeal.

11.On the material already made available by the parties, it is unlikely that they would be required to return for another oral hearing before this court.

12.Needless to say, the parties should proceed with the Dismissal Appeal expeditiously.

Mr Bernard Man SC and Mr Thomas Wong, instructed by Georgiou Payne Stewien LLP, for the plaintiff

Mr Horace Wong SC and Mr Clark Wang, instructed by Robertsons, for the 1^st and 2^nd defendants