Honet Industries Ltd. v. Lee Hong Ja t/a Kong Hing Shipping Co.

HCCL000047/1996

HCCL 47/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 47 OF 1996

____________

____________

Coram: Deputy High Court Judge Longley in Chambers

Date of Hearing: 3 May 2001

Date of Ruling: 3 May 2001

___________________________________

1ST RULING : PLAINTIFF'S SUMMONS

___________________________________

1. When the Defendant made its application by summons before Waung J on 5 March 1996, it was seeking to exchange the security it had over the goods by way of lien for a financial security from the Plaintiff for its storage charges. At that stage, the figure sought was $105,600.00.

2. It appears that at the hearing it was indicated by the solicitors representing the Plaintiff that the Plaintiff did not want the goods. Waung J therefore made the alternative order sought by the Defendant which was that the goods be sold and the balance of proceeds of sale be lodged in court to abide the outcome of the action or further order. It is reasonable to assume that the intention was that the money paid in would be a security for the Defendant's counterclaim for storage charges. Waung J naturally at that stage had no means of knowing what the goods would realise. The money was not however security for the Defendant's costs.

3. The net proceeds of sale amounted to $280,283.00 which was paid in by the Defendant on 29 April 1996. This has been accruing interest since that date. There is a dispute as to the period for which storage charges should run. That can only be resolved by evidence at trial. Mr Barber, for the Defendant, says that the Defendant's claim for storage charges up until the date of sale is $115,200.00. Mr Chow only concedes $50,283.00 would be payable. I have not yet considered the Defendant's application for security of costs under S.357 of the Companies Ordinance, but, without prejudice to that application which I will shortly hear, on the Plaintiff's summons my order would be that of the sum now in court:

(1) $165,083.00, (i.e. $280,283.00 - $115,200.00) plus interest on that sum from the date of payment in be paid out to the Plaintiff.

(2) $50,283.00 (representing to amount the Plaintiff concedes is payable as storage charges) plus interest on that sum from the date of payment in be paid out to the Defendant,

(3) The balance of $64,917.00 plus interest thereon remain in court to abide the outcome of the action or further order.

4. That is what my ruling would be if I was called upon simply to make an order on the basis of the Plaintiff's summons. I now proceed to hear the Defendant's summons for security for cost.

Representation:

Mr Chow Man Kui, Kenneth, of Messrs Chow & Choy, for the Plaintiff

Mr William Barber, of Messrs Richards Butler, for the Defendant