Dynasty Line Ltd (Provisional Liquidators Appointed) v. Sukamto Sia and Another

CACV 180/2008 and
                                                                 CACV 184/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 180 OF 2008

(ON APPEAL FROM HCA 2057 OF 2007)

________________________

BETWEEN

And

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 184 OF 2008

(ON APPEAL FROM HCA 2057 OF 2007)

________________________

BETWEEN

Before : Hon Cheung, Yuen JJA and Burrell J in Court

Date of Hearing : 11 June 2009

Date of Decision : 11 June 2009

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D E C I S I O N

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I.  Costs of the appeal and below

1.The 1^st defendant is entitled to two-thirds of the costs of the appeal and below.  The reason why the 1^st defendant is deprived of part of the costs is that his case involves two discrete matters, namely, first, whether he was properly served within jurisdiction and second, if so, whether the action should be stayed by reason of forum nonconveniens.  As the 1^st defendant failed on the first matter which involved the calling of factual evidence, he should not be entitled to the costs relating to the first matter.

2.The 2^nd defendant is entitled to the full costs of the appeal and below.  Although he only succeeded on the issue of forum nonconveniens, ultimately the sole question is whether it was a proper case for service outside jurisdiction on the 2^nd defendant and he succeeded on this question.

3.This is not a proper case for an indemnity costs order.

II.  Leave to appeal to the Court of Appeal

4.The plaintiff has not shown that the case is so exceptional that leave should be granted on the ‘or otherwise’ ground.

III.  Mareva injunction

5.As the plaintiff failed to obtain leave to appeal, it should not be entitled to a mareva injunction pending appeal.

6.This is also not an appropriate case for granting an interim mareva injunction for 28 days pending the plaintiff’s application to the Court of Final Appeal for leave to appeal.

Costs of the application

7.The 1^st and 2^nd defendants are entitled to the costs of the application for leave to appeal and mareva injunction.

Mr. Joseph Fok, SC and Mr. Alexander Stock, instructed by Messrs Hwang & Co., for the Plaintiff

Mr. Jose-Antonio Maurellet, instructed by Messrs Tanner De Witt, for the 1^st Defendant

Mr. Russell Coleman, SC, instructed by Messrs Deacons, for the 2^nd Defendant