Citibank N.A. v. Carven Enterprises Ltd and Others

HCA 2209/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2209 OF 2008

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BETWEEN

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Before: Deputy High Court Judge Carlson in Chambers

Date of Ruling (Handed down): 12 August 2009

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R U L I N G

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1.I have to deal with an application by the Plaintiff for the costs of an abandoned appeal by the 5^th and 6^th Defendants.

2.The background to this is short and uncomplicated.  The Plaintiff, a bank, had extended credit facilities to the 1^st Defendant for which, amongst others, the 5^th and 6^th Defendants had stood as guarantors.  The Plaintiff has brought this action to have repaid to it the sum of $2,461,515.43 by the 1^st Defendant as principal debtor and, more particularly for these purposes, the 5^th and 6^th Defendants as guarantors of the 1^st Defendant’s indebtedness.

3.On 10 March 2009 Master Kwong entered summary judgment under Order 14 against these two Defendants who appealed against that order on 23 March 2009.  The appeal was set down for hearing before me on 16 July 2009.

4.Accordingly, the Plaintiff prepared for the appeal and instructed counsel, Mr Maurellet, to conduct the appeal on its behalf.

5.On 22^nd June 2009, the 6^th Defendant indicated that he would abandon his appeal as did the 5^th Defendant on the 9 July 2009.

6.Neither Defendant has in his notice of abandonment indicated whether he agreed to pay the costs of and occasioned by his abandoned appeal.

7.I vacated the hearing date of the appeal on 10 July 2009 following receipt of the 5^th Defendant’s notice of the abandonment of his appeal dated 9July.

8.The Plaintiff seeks its costs of and occasioned by the now abandoned appeal.  It had briefed counsel before receipt of the first notice of the abandonment on 22 June.  I have directed this to be dealt with on paper.  The Plaintiff has submitted a skeleton argument from Mr Maurellet.  I have given the Defendants 14 days to respond.  They have not done so.

9.It seems to me that the application for costs is unanswerable.  These should follow the event.  It was reasonable to have briefed counsel which was done before the 1^st abandoned appeal by the 6^th Defendant on 22 June.  It is also fair to say that the Defendants never indicated that they were liable to pay the costs thrown away as a result of their having abandoned their appeal.  The Plaintiff would have been entitled to have had that dealt with.  I have therefore, for convenience, directed that this be done on paper.

10.And so costs to the Plaintiff.  I will make a gross assessment, the application for which has also been served on the Defendants.  The amounts claimed are all perfectly proper.  I assess costs against the Defendants jointly and severally in the amount of $49,483.00.

Jose-Antonio Maurellet, instructed by Messrs Wilkinson & Grist, for the Plaintiff

No submissions from the 5^th and 6^th Defendants