Soloms Waknine & Baronelli Ltd v. Ming Cheong Manufacturing Co Ltd and Others

HCA003656/1983

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BETWEEN :-

Coram: The Hon. Mr. Justice Jackson-Lipkin in Chambers

Date of Hearing: 9th November, 1984

Date & Time of Delivery of Ruling: 10.35 a . m. on 9th November, 1984

Appearances:  Liao for Plaintiffs

(B.) Yu for 2nd and 3rd Defendants

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RULING

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1. This action commenced in March of 1983, the pleadings were closed in May of 1983 and a Summons was taken out in June of 1983 for security for costs. It was issued on the 31st of May and a consent was endorsed on it. A Consent Order was made in consequence on the 6th of June, for $35,000 to be paid into Court by way of security for costs.

2. The 2nd and 3rd Defendants to-day seek a further Order for security for costs, which is opposed, and opposed on two grounds. One, that there was a consent endorsed on the first Summons that I referred to and a Consent Order was consequently made and that that is effectively a bar to asking for further security for costs. In the normal course of events, that would be so, and I would uphold such a plea and make no further Order: However, such a case is not this case. The parties, in the usual Hong Kong way, said that the case would last three days: They said that in May of 1983; they actually agreed among themselves that the estimate was about three days, but there was some slightest disagreement in that the Plaintiff's solicitors thought possibly it could be a little less. Nonetheless they eventually agreed on three days, and, as a result of that, Master Hassan made an Order, a Consent Order, for the appropriate amount of` security for costs for three days.

3. The action came on before me on the 21st of December 1983 and, by the time we rose on the last day of the Michaelmas Term of 1983, the Plaintiff's evidence-in-chief had not been concluded. Counsel were asked for their estimate of how much further time was required; they consulted among themselves and with their solicitors; and they then informed me that five further days would be required. The matter was then adjourned to dates to be fixed after the Plaintiff had returned to New York to arrange further Discovery and after the parties had made the various amendments to the pleadings, which had become necessary in the course of those two days.

4. The Plaintiff has been seriously ill, and the case has not yet been restored to the list.

5. An estimate in the form of a skeleton bill of costs has been put forward in support of to-day's application. It is a skeleton bill of costs for a seven days' hearing, but the security asked for is for but four days. Those four days are reached by the simple process of subtraction. We have already had two days of hearing and counsel estimate that five more are required; five and two are seven; the original Order made by Master Hassan was for three; seven minus three is four. It follows, in circumstances such as these, of a (in this case, the) Consent Order for three days, that such an Order can not be a bar to an application for a further Order for security for costs for the balance of anything in excess of three days.

6. The second point taken by Mr. Liao is this: Because the Plaintiffs evidence has commenced and has, in fact, gone a long way, the Court is in a much better position now to make an assessment as to the merits of the Plaintiffs' case than it was in the days when the application was made to Master Hassan in May of last year. Unfortunately, I can not see any merit at all in the submission itself. First, none of the Plaintiff's evidence has been tested in cross-examination: Second, it is not even complete. Third, Discovery is incomplete, and the additional documents may so fortify the Plaintiffs' case that the Defendant may take a different view of it, and: Fourth I have not, so far as I know, been supplied with any of the amendments to the pleadings which were supposed to flow from the two days' hearing in December last.

7. Accordingly, I will make an Order for further security.

8. The skeleton bill of costs is for the whole hearing including the two days we have already had, but what is asked for is not what appears in the skeleton bill of costs, but what is in that bill less what was paid in under Master Hassan's Order for a three days' hearing; and I will, accordingly, accept that arithmetic and make an Order for further security in the sum of $32,632.

9. In view of the fearsome difficulties facing the Plaintiff's legal advisers in Hong Kong, I will make the period for payment-in 28 days. Failing such payment-in, the Action will stand dismissed.

10. There will be liberty to both parties to apply.

11. The costs of to-day, and of the abortive hearing under this Summons on 2nd October 1984, will be the Defendants' costs in the cause.

Representation:

Solicitors:  Johnson, Stokes & Master for Plaintiffs

Robert W.H. Wang & Co. for 2nd & 3rd Defendants