Indian Corridor Sdn Bhd and Another v. China Idea Development Ltd and Others

HCA1/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1 OF 2008

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BETWEEN

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Coram : Deputy High Court Judge Carlson in Chambers

Date of Hearing : 25 January 2008

Date of Ruling : 25 January 2008

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R U L I N G

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1.What I am required to rule on this afternoon is short.  The 1st defendant is inviting me to vary the existing ex-parte Mareva injunction dated 31 December last to permit it to pay its reasonable business expenses and legal fees.

2.Mr Smith, SC, who appears for the plaintiff has suggested that this is already provided for under the terms of the existing order circumscribed by what, in the circumstances, might be reasonable.  Nevertheless, it seems to me that Mr Scott, SC, is right in saying that I should provide an amount, otherwise the bank or banks which hold the 1st defendant’s account will not be able to release any money.  In the circumstances, I will in a moment provide what I judge to be a reasonable amount as matters presently stand.

3.The next issue concerns fortification of the plaintiffs’ undertaking in damages; something over $11 million is sought by the 1st defendant.  Lastly, I also need to make some ancillary orders which I will do presently.

4.As to the amount for business expenses, a sum of $28,787,260 is asked for, justification for which is to be found in bundle E, pages 263 and 264, which will enable the project to continue, this all coming from the first affirmation of Mr Kwan Wah-kwun dated 24 January this year.  

5.I propose to allow this to be spent as a maximum at this stage on terms of the 1st defendant provides the plaintiff, on a fortnightly basis, a schedule setting out the amount spent on its business expenses and bank accounts from which those expenses are met; secondly, copies of documents supporting and/or demonstrating the payments made in each case.

6.Mr Smith had suggested that this should come on a weekly basis.  It seems to me that fortnightly is probably less onerous and is sufficiently frequent to protect the plaintiffs’ interests.  I will also allow $1 million to be withdrawn for legal expenses.

7.I now turn to fortification.  The plaintiffs being overseas companies with no assets to speak of in Hong Kong, Mr Justice Reyes has ordered the plaintiff to provide $8 million to the 2nd defendant but the basis for that amount is different from that which is put forward on the 1st defendant’s behalf, putting its potential losses at this more substantial figure of $11 million and these losses are sought to be justified at pages 254A, B, C and D of bundle E.

8.In this regard, Mr Smith has addressed a number of persuasive submissions as to why I should order, in effect, a nominal amount.  But it seems to me that Mr Scott has been able to demonstrate a proper basis for saying that the 1st defendant faces very substantial losses arising from this injunction if it turns out that the injunction should not have been ordered.

9.I propose to err on the side of conservatism if only because this can be looked at again if need be.  Fortification should be provided in the sum of $9 million on or before 31 January, the terms of the order being as appear in (d) on page 2 of Mr Scott’s skeleton.  I will also extend the 1st defendant’s time for service of its defence and counter-claim to 27 February this year and say that today’s costs should be reserved, in the first instance, to 1 February when I will hear the substantive argument as to whether the injunction can stand.  This order will go with certificate for two counsel.

10.So the order therefore will be as appears at paragraph 5 of Mr Scott’s skeleton with the additions that I have just provided in this ruling.  I think that is all I need to say.

Clifford Smith, SC and Frances Lok, instructed by Messrs Robertsons, for the 1st and 2nd Plaintiff

John Scott, SC and Janine Cheung, instructed by Messrs Richards Butler, for the 1st Defendant