Perak Pioneer Ltd. v. Carrian Holdings Ltd.

CACV000110A/1984

BETWEEN

Coram: Hon. Li, V.-P., Fuad & Kempster, JJ.A.

Date of Hearing: 31st May 1985

Date of Judgment: 31st May 1985

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JUDGMENT

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Kempster, J.A.

1. We thought that before hearing argument about a further interesting aspect of costs we would give a brief "judgment of the court" on the two matters which have been before us this afternoon; starting with some brief points of history.

2. On 4th May 1984 Carrian Holdings Ltd. in liquidation presented a petition for the winding-up of Perak Pioneer Ltd. (I should refer to those partes respectively as Carrian and Perak). On 9th July the petition and a motion to remove it from the file were heard together and a winding-up order was made. On 18th July this court allowed an appeal from that order and itself ordered that the petition and motion be reinstated and tried by a different judge. This court also ordered that the cost of the appeal and of the court below be paid by Carrian to Perak. Today we have before us two applications ostensibly for further directions in the context of that order for costs. Carrian seek a direction that the costs ordered on 18th July of last year shall not include the costs  incurred in preparing for the hearing below; such costs to be in the discretion of the judge who re-hears the petition and the motion to remove it from the file. This direction or clarification certainly accords with our intent at the time we gave judgment, and, in our view, also accords with the order as drawn up when the penultimate and ultimate paragraphs are read together. Be that as may we give the direction sought; perhaps amplifying it in including the application to remove the petition from the file.

3. Perak, who at all material times have retained a residuary power to instruct solicitors, seek an order that the costs ordered to be paid by Carrian be directly remitted to them by Carrian or their solicitors. In other words, they seek the equitable interference of the court under its inherent jurisdiction so to act for their protection. This is really invoking a discretionary exercise of the undoubted power of the High Court to safeguard their interests and to secure their taxed costs. Of course any such order should not prejudice the rights of Perak, their clients, and this is really a matter or issue which has arisen on correspondence between solicitors instructed by Perak, namely Fairbairn & Kwok, on the one hand and the Official Receiver, who is the provisional liquidator of Perak, on the other. In the circumstances the provisional liquidator who has been served, we understand; with a copy to both applications is represented by Miss Eu and contends that Fairbairn & Kwok themselves should make an originating application to the High Court in the matter. As a corollary it is submitted that this court has no jurisdiction to deal with such a dispute or issue even if properly brought before it. Of course Fairbairn & Kwok are not represented at this hearing. Miss Eu has referred to the terms of s.13(1) of the Supreme Court Ordinance which confers upon us our civil jurisdiction and, in our view, the matter sought to be raised by Mr. Poon on behalf of Perak is not within our jurisdiction and the application of Perak is misconceived. Accordingly that application must be dismissed whereas, as regards the earlier application, we will amend the order in so far as it may be thought ambiguous to tread "and it is further Ordered that the costs of this appeal and of the hearing in the court below be paid by the said Respondents to the Appellants."

Representation:

Mr. G. Ma (Wilkinson & Grist) for Respondent

Mr. W. Poon (Fairbairn & Kwok) for Appellant

Miss A. Eu for Official Receiver