Cellplus (HK) Ltd and Another v. Team Products International, Inc. and Others

cacv 231/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 231 of 2005

(on appeal from HCA NO. 1034 of 2004 AND

HCA NO. 786 of 2004 (consolidated))

HCA 1034/2004

BETWEEN

HCA 786/2004

BETWEEN

(Consolidated by Order of Master de Souza dated 12 November 2004)

Before: Hon Rogers VP in Chambers

Date of Hearing: 3 August 2005

Date of Decision: 3 August 2005

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D E C I S I O N

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1.These are two applications.  One is for a stay of execution pending the appeal and the other is for security for costs.  This is a rather involved case because the defendants, although in some respects on the same side, are slightly on a different side.  There has been a partial judgment in favour of the 1^st plaintiff, for some US$2 million for goods sold and received, but there are other claims which are still outstanding.

2.The defence is that the defendant was led to believe that the 1^st plaintiff was itself a manufacturer and, indeed, even reading the plaintiffs’ case, it seems to me that there may be something in that because when one read between the lines, even of the statement of claim, I begin to feel that there is something in that and certainly in the other defendants’ defence, there is something in that.

3.The other thing is that, subject to any claims which the plaintiffs have against the 2^nd, 3^rd and 4^th defendants, a lot of the money that is being claimed by the 1^st plaintiff will, in fact, if the 1^st plaintiff’s claims fail against the 2^nd, 3^rd and 4^th defendants, have to be paid over to the 2^nd, 3^rd and 4^th defendants, or find its way there, because they produced the goods which were then sold to the 1^st plaintiff, which were then sold on to the 1^st defendant.

4.So in my view, given the involved nature of this case, I think that there should be a stay of execution.  I am not minded to order a payment into Court in this case.  I think there should simply be a stay of execution.

5.On the security for costs, the 1^st defendant is a company abroad and I see no reason why it should not provide security.  I think the security which is asked for of $200,000 is reasonable, and I am prepared to order that.

Mr Clifford Smith SC, instructed by Messrs Herbert Smith, for the 1^st Plaintiff in HCA 1034/2004/Respondent

Mr Russell Coleman, instructed by Messrs Miller Peart, for the 1^st Defendant in HCA 1034/2004/Appellant

Appeal by 1st Plaintiff in HCA1034/2004 to Court of Appeal dimissed. Please refer to CACV231/2005 dated 12 September 2005