R.A. Stegemann v. Wise Power Far East Ltd and Others

HCA 282/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 282 OF 2005

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BETWEEN

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Coram : Before Mr. Registrar C. Chan in Chambers

Date of Hearing: 27 October 2006

Date of Decision: 13 November 2006

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D E C I S I O N

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1.This is an application by the Plaintiff for stay of enforcement the costs order made by Mr. Justice Burrell of $1,000 and also of the costs order made by me in favour of the 3^rd Defendant against the Plaintiff.  On 31 August 2006 I assessed the costs in the sum of $8,710.00.

2.The 3^rd Defendant gave several reasons for the stay, one of which is that the Plaintiff’s claim against the other defendants are still in progress and he has a high chance of success.  The other defendants are closely related to the 3^rd Defendant.  The money, if recovered, is sufficient to pay the amount of costs he owed the 3^rd Defendant.  He also alleges that the 1^st Defendant and 2^nd Defendant will be reorganized in such a way that even if he obtains judgment in his favour, it will be an empty judgment and he will not get any money out of it while he has to pay the costs now.

3.Rightly pointed out by Mr. Ho, the 2^nd Defendant is Mr. Ho himself, a person trading as a firm.  It is my view that he is liable to meet his legal obligation as much as the Plaintiff in this action.

4.It cannot be denied that the 3^rd Defendant is controlled by Mr. Ho and represented by him in this action.  The three defendants are very closely connected with each other.  But, this does not alter the fact that legally the 3^rd Defendant is a separate entity.

5.As the Plaintiff’s claim against the 3^rd Defendant has been dismissed and the action against it struck out, the 3^rd Defendant has nothing more to do with the Plaintiff’s claims against the other defendants in the same action.  It is only right that the 3^rd Defendant be paid whatever it is entitled.

6.The Plaintiff has tested his claim against the 3^rd Defendant at different levels of court since 2004 and the Plaintiff has now after all these proceedings decided to give up that claim.  The 3^rd Defendant has been brought in and has been defending the claim for 2 years.  It got its judgment.  I find no reason that the 3^rd Defendant being a successful litigant should be deprived of the fruits of its litigation.

7.The Plaintiff claims that he is in financial difficulty and cannot pay it.  I accept that everyone may have his difficult time.  The 3^rd Defendant points out that the Plaintiff is an English teacher and can charge as high as $250 per hour.  He can easily pay the sum of $8,710 assessed by me and the $1,000 by Burrell J.  Mr. Stegemann has not disclosed much of his financial situation to me and I have no material to work on it.  He offers no plan for payment and I cannot decide whether I should allow him to pay by instalments or any other method of payment.

8.For the above reasons, I dismiss the Plaintiff’s application for the stay of enforcement of the costs order made by me as well as that by Burrell J.  I make an order nisi that the Plaintiff has to pay the costs of this application assessed by me in the sum of $350.  Unless an application in writing to vary the costs order nisi is filed and served within 14 days after the date of this order, the order nisi will become absolute.

Plaintiff appearing in person

3rd Defendant appearing in person