Yeung Kwok Fan & Another v. Standard Chartered Bank
Read the full judgment text of HCMP 2308/2001 on BabelCite. This High Court CFI judgment was delivered on 12 November 2001.
1. On 19 October 2001, I handed down my judgment in this case which concerned the interpretation of a Deed of Settlement dated 30 June 2000 entered into between the plaintiffs, the defendant and other parties. The acute practical issue dealt with which opposing party was entitled to about HK$68,000,000 held by the Bank. I found for the Bank and dismissed the originating summons in its entirety and by order nisi the plaintiffs were ordered to pay the costs of the summons to the defendant to be ta
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HCMP002308A/2001 HCMP2308/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO.2308 OF 2001 ---------------------------
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------------------------- Coram : Deputy High Court Judge McCoy SC in Court Date of Hearing : 12 November 2001 Date of Judgment : 12 November 2001 Date of Reasons for Judgment : 13 November 2001 ----------------------------------------------------- R E A S O N S F O R J U D G M E N T ----------------------------------------------------- 1.On 19 October 2001, I handed down my judgment in this case which concerned the interpretation of a Deed of Settlement dated 30 June 2000 entered into between the plaintiffs, the defendant and other parties. The acute practical issue dealt with which opposing party was entitled to about HK$68,000,000 held by the Bank. I found for the Bank and dismissed the originating summons in its entirety and by order nisi the plaintiffs were ordered to pay the costs of the summons to the defendant to be taxed unless agreed : Order 42, rule 5(B)(6), Rules of the High Court. 2.By a summons dated 2 November 2001, the defendant has applied for three orders, namely that :
3.The basis for the claim to indemnity costs is that the plaintiffs had entered into a formal Guarantee with the defendant on 13 July 1999 in which the plaintiffs guaranteed certain indebtedness due to the Bank by certain members of the Wah Lee Group of Companies. That Guarantee was limited to the sum of HK$70 million exclusive of interest, commission, costs, charges and other expenses. Costs of this litigation, it is argued, are recoverable on an indemnity basis as the plaintiffs guaranteed :
4.By my judgment, I concluded that the Guarantee had been incorporated within the Deed of Settlement dated 30 June 2000 between the plaintiffs, others and the defendant. It was intended that the Guarantee would subsist as part of the Deed, as varied by the Deed. Clause 20.2 of the Deed also provides :
Contractual claim for indemnity costs 5.The basis of the claim for indemnity costs of these proceedings, is contractual. In Gomba Holdings (U.K.) Ltd & Others v. Minories Finance Ltd & Others (No.2) [1993] Ch 171, Scott LJ delivered the judgment of himself, Sir Stephen Brown P and Stocker LJ in a case where the plaintiff group of companies borrowed money from the defendant bank, secured by mortgages. It was a term of the mortgages that the plaintiff would pay on demand and on a full indemnity basis all costs, charges and expenses however incurred by the Bank or by a receiver under the mortgage or in enforcing the security. The court needed to deal with the interaction between a contractual right to litigation costs and its discretionary power under statute to award costs. In Hong Kong, s.52(A)(1) of the High Court Ordinance provides :
The Hong Kong section is materially indistinguishable from s.51(1) Supreme Court Act 1981 which was the subject of consideration in Gomba Holdings (U.K.) Ltd. In a reserved judgment, the Court of Appeal held at 194A that the following principles are to be applied :
That position is consonant with the law in Australia, see In re Shanahan (1941) 58 W.N. (N.S.W.) 132, 134 per Street J and in New Zealand, see A.N.Z. Banking Group (New Zealand) Ltd v. Gibson [1981] 2 N.Z.L.R. 513, 531 per Holland J. 6.But more importantly, in Chekiang First Bank v. Fong Siu Kin & Anor [1997] 2 HKC 302, the Court of Appeal in separate judgments delivered by Litton VP, Godfrey and Ching JJA affirmed that the decision in Gomba Holdings correctly represents the law in Hong Kong too. At 309D, Litton VP said:
7.In Hang Seng Credit Card Ltd & Ors v. Tsang Nga Lee & Ors [2000] 3 HKC 269(HC), Yam J followed the principle in Chekiang First Bank but distinguished it in the result. In that case, Yam J was able to find that the defendants there had proved, pursuant to s.5(2) Unconscionable Contracts Ordinance, Cap.458, that :
No issue under the Unconscionable Contracts Ordinance has been or could be raised before me. Contractual claim for indemnity costs principle is not confined to mortgage cases 8.In Church Commissioners for England v. Ibrahim and another [1997] 1 EGLR 13(CA), the appellant landlords had granted the respondent a shorthold tenancy. By a clause of the agreement, the tenants agreed to pay and compensate the landlords fully for any cost, expense, loss or damage by reason of any breaches of the agreement, and to indemnify the landlords in respect of all actions, claims and liabilities. In proceedings for possession based on arrears of rent, the landlords sought an order for costs on an indemnity basis. They relied on the clause in the lease. The landlords appealed against the decision of the Recorder who mercifully declined to make such an indemnity order against the impoverished tenant. The Court of Appeal allowed the appeal, holding that a successful litigant's contractual rights to recover costs of any proceedings to enforce primary contractual rights is a highly relevant factor when it comes to making a costs order. Such a litigant is not to be deprived of his contractual rights to costs unless there was a good reason. Roch LJ referred to Gomba Holdings and said at 14H :
Roch LJ noted that a good reason for depriving a successful litigant of his costs would be that part of the costs came within the provisions of the English equivalent of Order 62, rule 7 of the Rules of the High Court that is to say, they were incurred as a result of improper, unreasonable or negligent conduct on his part. Extremely limited discretion not to enforce contractual indemnity costs agreement 9.At 14L of Church Commissioners, Roch LJ added :
I entirely agree with this statement. 10.Hobhouse LJ in a concurring judgment referred to the equivalent in Hong Kong of Order 62, rule 2(4) of the Rules of the High Court, which is the overriding and general provision which states :
and at p.15 referred to Gomba Holdings stating that it is clear that in deciding what should be the basis of taxation, the court has a discretion that it should ordinarily exercise it in a way that carries into effect the contractual provision. Butler-Sloss LJ agreed with both judgments. 11.The court plainly has by virtue of the statutory provision in s.52(A)(1) of the High Court Ordinance, a discretion as to the award of costs. But on a principled basis, where the parties have agreed how that discretion should be exercised, it will only be in an exceptional case that the court could be justified in departing from their own agreement. Plainly such a situation may be encountered if the terms of Order 62, rule 7 of the Rules of the High Court applied or if there is proof of unconscionability as in Hang Seng Credit Card. The width of the remaining "gap" in the discretion, (if any), is far far too narrow for these plaintiffs to pass through. 12.Mr Chan for the plaintiffs before me argued that "the commercial behaviour" of a party and whether a party had been "financially arrogant" were relevant criteria. In my judgment, that submission is intrinsically nebulous and completely devoid of merit. Any such approach would subvert all principle and be a cloak for whimsical arbitrariness by the court. While a contract cannot oust the statute, the court will not oust the contract, unless it is driven to that conclusion by some principled impetus. Where there is a contract as to the incidence and nature of costs between the parties, that mutuality will not be undone because the court has some caprice that it could do better distributive justice than the parties themselves have agreed. This type of contractual provision is in many ways the ultimate pre-fettered discretion. But on the facts of the present case, no issue of unconscionability arises nor could it. The parties after considerable negotiation and legal advice settled on the terms of the Deed which by paragraph 2.1 expressly provide that the plaintiffs "unconditionally and irrevocably" acknowledged and agreed that the Guarantee is valid and enforceable. It is, therefore, ineluctably valid for all purposes including as to the incidence of costs in this litigation. Construction of Guarantee - "Recovery" 13.However, before me Mr Chan raises a construction point as to the terms of clause 1(c) of the Guarantee which (again) provides :
(This is the standard form provision in all Standard Chartered Bank Guarantees.) His argument includes a submission that this originating summons was not a "recovery" by the Bank, as the Bank was the defendant to the proceedings. The plaintiffs were seeking to "recover" from the Bank but not vice versa. Mr Kat for the defendant, in his submissions, says that the Guarantee properly understood, surely includes this originating summons proceedings. He emphasises the causal or derivative width of the expression "in connection with the recovery ... by the Bank" and that the substance of the litigation in relation to the Deed was to dispose of the liabilities of the plaintiffs pursuant to the Guarantee. I have held that the Guarantee was to be dealt with as part of the Deed. The Deed had been preceded by a Mareva injunction. The Mareva was a successful attempt by the defendant to preclude the plaintiffs availing themselves of the funds before they reached the Bank. The Bank, as successful protagonist, stopped that. By agreed variation of the Mareva the funds were later transmitted by a third party to the Bank. The Deed was an attempt by the plaintiffs to stave off liquidation of their group of companies. The proceedings before me were an unsuccessful attempt to claim that the moneys that the Bank held were owned beneficially by the plaintiffs and therefore owed to them by the Bank. I gave judgment against the plaintiffs on every point and therefore for the Bank, which by that judgment are now entitled to the moneys. The costs of defending this originating summons by the Bank are costs "in connection" with the terms of the Guarantee, as now embedded in the Deed. 14.The "recovery of funds" is an expansive term. It does not presuppose that the funds had been in the legal possession or custody of the Bank before. For example, the common expression to "recover fees" does not mean that the fees were actually had by the Bank in the first place and the Bank is again attempting to obtain them. "Re" as an English language prefix does not always mean "again". See the word "removal". "Recovery" here is simply a generic commercial process of endeavour by a Bank to obtain what is said to be due to it in accordance with its rights at law or equity. A recovery situation exists even without the need for any antecedent attempt to have gained the desired result. 15.In my judgment, it would be unreal if on the construction of the Guarantee the Bank could only recover its costs on an indemnity basis where it had been the initiating aggressor or protagonist, i.e. the plaintiff in litigation. If this were correct, which it is not, this would mean that the Bank's right to indemnity costs could always be successfully frustrated by any customer initiating declaratory or other proceedings before the Bank did, on the basis that a defendant in that scenario is not seeking to "recover" anything. But the victor in litigation is entitled to "recover" from the vanquished. Of course, on one basis, the Bank could always file a counterclaim if proper circumstances existed, which would then place it undeniably in recovery mode. But recovery in litigation may be active or passive, as plaintiff, defendant or otherwise. All litigation modes are equally effective for the purposes of clause 1(c) of the Bank's Guarantee and its entitlement to indemnity costs thereunder. In my judgment, a counterclaim is not required at all. Indeed before me, there was a time when Mr Kat, entirely as a contingent position, applied to formally file a counterclaim to the originating summons to remove any possibility of argument that the Bank was not seeking to "recover" its funds. Counterclaim to Originating Summons : Order 28, rule 7(2) of the Rules of the High Court 16.In the course of argument, Mr Kat was agitated that perhaps the Bank might be in a stronger position in relation to indemnity costs, if it now sought to counterclaim under the originating summons. To do so, he drafted in the course of the Order 42, rule 5B(6) summons today a bare counterclaim pursuant to Order 28, rule 7(2), which sought only that the defendant have its costs of the originating summons on a full indemnity proceedings. The Hong Kong Civil Procedure 2001 accurately states of Order 28, rule 7(2) at 28/7/1 : "This rule lays down no procedure for these cases" i.e. a counterclaim by a defendant. Should such a counterclaim be commenced, it appears it may be formulated by affidavit as here, but it must be first the subject of directions : Ng Wing See v. Chang Chi Ching [1973] HKLR 170(FC). See : Atkins Court Forms, Vol.29, p.368 and Form 13 :
But this approach is valid only after directions have been given. There should be an express direction as to how a counterclaim to an originating summons should be prosecuted in every case : Ng Wing See per Blair-Kerr SPJ at 181. Huggins J stated that the court is always obliged to make a direction as to the manner in which a counterclaim is made. McMullin J concurred. 17.When confronted with this application to amend the originating summons to add a counterclaim only for costs, Mr Chan objected. In my view, he was entirely correct on this point, as the application was legally frivolous. Mr Kat withdrew his application. 18.It was clearly a Monday morning. Counterclaim seeking only costs of the Originating Summons 19.A defendant's counterclaim in an originating summons, which seeks as relief against the plaintiff only the costs, (albeit on a contractual indemnity basis), of the extant originating summons proceedings, is a forensic jabberwocky - a legal nonsense. The court has jurisdiction by s.52A(1) of the High Court Ordinance, Cap.4 and Order 62, rule 2(4) of the Rules of the High Court to determine the defendant's entitlement to costs and the nature of those costs simply by virtue of the plaintiff's originating summons against the defendant. This short-lived creation of Mr Kat for the defendant, purportedly in response to a supposed observation by Mr Chan for the plaintiffs that the defendant had never pleaded a claim for indemnity costs, was a grotesque example of White Book genetic engineering. It was buried, to the obsequial refrain of an accompanying Order by the court, that the defendant pay to the plaintiffs a gross sum of HK$5,000, pursuant to Order 62, rule 9(4)(b) of the Rules of the High Court, to commemorate the short time dolefully occupied through its conception, gestation and rapid internment. Disposition 20.However, for the reasons given, I do also make the three orders sought in the defendant's summons, as the Guarantee is ample authority for the defendant's entitlement to indemnity costs.
Representation: Mr Anthony Chan, instructed by Messrs Benson Li & Co., for the Plaintiffs Mr Nigel Kat, instructed by Messrs Deacons, for the Defendant |
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