Dynasty Line Ltd (Provisional Liquidators Appointed) v. Sukamto Sia and Another
Read the full judgment text of CACV 180/2008 on BabelCite. This Court of Appeal judgment was delivered on 11 June 2009 before Cheung JA, Yuen JA, Burrell J.
Civil procedure – costs – appeal and below – apportionment where defendant succeeded on one issue but failed on another – service within jurisdiction – forum non conveniens – service outside jurisdiction – leave to appeal – 'or otherwise' ground – exceptional circumstances – Mareva injunction – pending appeal – interim Mareva injunction pending application to Court of Final Appeal – whether plaintiff entitled to Mareva relief after failing to obtain leave to appeal – 1st defendant succeeded on forum non conveniens but failed on service issue involving factual evidence, entitled to two-thirds of costs – 2nd defendant succeeded on sole question of service outside jurisdiction, entitled to full costs – no indemnity costs order warranted – plaintiff failed to show exceptional circumstances for leave on 'or otherwise' ground – Mareva injunction refused as leave to appeal not granted – no interim Mareva injunction pending application to Court of Final Appeal – defendants entitled to costs of application for leave and Mareva injunction.
Legal issues: Costs of the appeal and below · Leave to appeal to the Court of Appeal · Mareva injunction pending appeal
Outcome: Leave to appeal refused; Mareva injunction refused; 1st defendant awarded two-thirds of costs of appeal and below; 2nd defendant awarded full costs of appeal and below; both defendants awarded costs of the application for leave to appeal and Mareva injunction.
Cites 1 case
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CACV 180/2008 and 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 ________________________ D E C I S I O N ________________________
I. Costs of the appeal and below 1.The 1st defendant is entitled to two-thirds of the costs of the appeal and below. The reason why the 1st 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 1st 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 2nd 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 2nd 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 1st and 2nd 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 1st Defendant Mr. Russell Coleman, SC, instructed by Messrs Deacons, for the 2nd Defendant |
Cases cited in this judgment
Further hearings and rulings under CACV 180/2008