Bray International, Inc. v. Cheng Yuk Chor and Others

HCA 372/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 372 OF 2007

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BETWEEN

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Before : Deputy High Court Judge Gill in Chambers

Date of Hearing : 25 October 2007

Date of Ruling : 31 October 2007

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R U L I N G

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1.27 July 2007 was the adjourned return day for three applications for injunctions made against the 8^th defendant (K C Chan) ex parte on 23 February 2007.  The injunctions then granted against K C Chan and others of the defendants were an Anton Pillar order for search and seizure, a Mareva injunction freezing assets up to the sum of $31.32 million, and a third injunction, called the Interim injunction, for specific protection from alleged breaches of fiduciary duties owed the plaintiff (Bray) by former employees of Bray, being various of the other defendants.  K C Chan was joined as a co-conspirator.

2.During the course of the hearing which lasted two days Mr Ng for K C Chan opposed the applications made inter partes.  Further, he argued that the injunctions should not have been made ex parte and would not have been had there been full and frank disclosure.

3.Based on the evidence adduced I was satisfied with reasons given in a judgment handed down on 10 August 2007 that there was sufficient to warrant the granting of all three injunctions against K C Chan ex parte.  On the applications inter partes Ms Rattigan for Bray told me on enquiry that the Anton Pillar order had run its course and was not being pursued.  I renewed the Mareva order.  In respect of the application for the Interim injunction I ordered a watered down version of that granted ex parte, pending trial or further order.

4.I made certain costs orders nisi.

5.K C Chan applied to argue the costs.  This came before me on 25 October 2007. 

6.I have now heard submissions from both sides; Mr Ng still for K C Chan and Ms Rattigan for Bray.  Having heard those submissions I now revisit the chronology before coming to reconsider the costs orders made.

7.Bray was successful in the contest justifying the applications made ex parte; this was at the hearing of 23 February.  Costs were reserved.

8.There were hearings of 2and 30 March and 27 April involving all the defendants injuncted on 23 February, when directions were asked for and given and the return date extended.  Costs were reserved. 

9.There was a further hearing before the summons judge of 4 May in respect of the matters concerning K C Chan alone, when there was a failed attempt to resolve the terms of the Interim injunction inter partes.  Costs were ordered in the cause.

10.K C Chan applied for an early date for the restored return date.  This was opposed by Bray, and dealt with on 11 July.  Ms Rattigan then argued that the summons against all the injuncted defendants should be heard on the same day and the others were not ready.  I ruled in favour of K C Chan’s application for an early date.  Costs were reserved.

11.This last direction gave rise to the hearing date of 27 July.  Following the hearing of 27 and 30 July I made the orders referred to at paragraph 3 herein on 10 August.  Thus each party had partial success.  This gave rise to the costs order nisi now challenged.

12.The costs orders I now make are as follows:

In respect of the applications made ex parte and heard on 23 February: Bray’s costs (as they relate only to K C Chan) are in the cause (see the White Book 29/1/44);

in respect of the hearings of 2 and 30 March, 27 April and 27 and 30 July, those of Bray (as they relate only to K C Chan) as to 2/3 are in the cause; those of K C Chan as to 1/3 are in the cause (see also WB 29/1/44); and

in respect of the application heard on 11 July costs are to K C Chan in any event.

These costs orders replace the orders nisi and are now absolute.

13.As for the hearing of 25 October; I shall treat this as an extension of the hearing of 27 and 30 July and make the same order for costs; namely, 2/3 of Bray’s costs are in the cause and 1/3 of K C Chan’s costs are in the cause.

Ms M Rattigan, instructed by Messrs Baker & McKenzie, for the Plaintiff

Mr M Ng, instructed by Messrs Robert Siu & Co., for the 8^th Defendant