Read the full judgment text of HCA 5191/1998 on BabelCite. This High Court CFI judgment was delivered on 11 November 2003 before Master Kenneth Wong.
Civil procedure – security for costs – Order 23, rule 1 of the Rules of the High Court – whether Execution Summons seeking leave to execute judgment debt against a non-party director personally is "an action or other proceeding" such that the respondent is a "defendant" for the purpose of applying for security – distinction between interlocutory applications and proceedings in the nature of an action – whether foreign plaintiff – whether plaintiff changed address during course of proceedings to evade consequences of litigation – exercise of discretion to order security – broad-brush assessment of quantum of security – default judgment against diamond-trading companies – American law firm plaintiff – allegation that first judgment debtor was never a body corporate – judgment debt of US$92,919.60 plus interest – Master Woolley's earlier order setting aside oral examination of Mr. Ilan Samuel as director of SRDL – Mr. Ilan Samuel's application for security for costs of the Plaintiff's Execution Summons – held that the Execution Summons was a proceeding in the nature of an action deciding substantive rights, so Mr. Samuel was a "defendant" under Order 23, rule 1 – held that the Plaintiff was a foreign American law firm ordinarily resident out of the jurisdiction, satisfying the threshold under Order 23, rule 1(a) – held that Order 23, rule 1(d) was not made out because the Plaintiff had ceased business in Hong Kong before the Execution Summons was issued – balancing exercise under Keart Developments Ltd v Tarmac Construction Ltd (as approved in Wing Hing Provision v Hanjin Shipping) carried out – Plaintiff's bare and unsupported assertion of financial weakness rejected – Plaintiff's case on the merits not shown to have a high degree of probability of success because of doubt whether Order 45 and Order 49B, rule 1 would support execution against Mr. Samuel personally if SRDL had never existed – security ordered in the sum of HK$150,000 by way of payment into court or other mode within 42 days – Execution Summons stayed pending provision of security – costs of the application awarded to Mr. Ilan Samuel with certificate for counsel in any event after determination of the Execution Summons.
Legal issues: Whether Mr. Samuel is a "defendant" under Order 23, rule 1 of the Rules of the High Court for the purpose of applying for security for costs · Whether the Plaintiff is a foreign plaintiff ordinarily resident out of the jurisdiction under Order 23, rule 1(a) · Whether Order 23, rule 1(d) was satisfied — change of address during proceedings to evade consequences of litigation · Whether the discretion to order security for costs should be exercised in Mr. Samuel's favour · Quantum of security for costs
Outcome: Mr. Samuel's application for security for costs of the Plaintiff's Execution Summons was allowed; the Plaintiff was ordered to furnish security in the sum of HK$150,000 and the Execution Summons was stayed pending provision of such security. Costs of the application were awarded to Mr. Ilan Samuel with a certificate for counsel.
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