Princess Yachts International Plc and Another v. Master Yachts Co Ltd and Another

HCA2277/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2277 OF 2009

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BETWEEN

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Before : Hon Yam J in Chambers

Date of Hearing : 2 March 2010

Date of Judgment : 2 March 2010

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JUDGMENT (NO. 2)

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1.In summons before me this morning, the plaintiffs asked for variation of a court order nisi made on 17 December 2009 when I handed down my judgment in their interlocutory application for injunction. I gave judgment basically for the plaintiffs and I ordered that costs should be in the cause.

2.In respect of the 1^st defendant who was unrepresented in the 1^st inter partes hearing on 20 November, it cannot be said that the defendant was opposing the injunction.

3.In the first place, the 1^st defendant was not in possession of the yacht V65 anymore and it was in the possession of Mr Lam Ching Wah who was the applicant there and then. He was represented by solicitors and counsel Mr Wilfred Tsui in the main hearing of the inter partes summons. The 1^st defendant was represented by Mr Payne of the 1^st defendant’s solicitors whereas by consent, the applicant became the 2^nd defendant. Mr Payne for the 1^st defendant categorically told me that they have no objection to the proposed amended summons as regards to paragraphs 1 and 3. As to paragraph 2, they also agreed to it but they only asked for a proviso to be added and that is a 7 days’ prior notice should be given should the plaintiffs want to remove the yacht out of this jurisdiction. Eventually that condition was so provided in the order.

4.In that case I think the order of costs against the 1^st defendant should remain as costs in the cause. In other words the plaintiffs’ summons against the 1^st defendant is dismissed.

5.In respect of the 2^nd defendant in the interlocutory injunction, Mr Tsui argued on two grounds as follows :

(1)  the 2^nd defendant is a pledgee of the yacht in question;

(2)  there was material non-disclosure on the part of the plaintiffs.

6.In my judgment, the 2^nd defendant lost the argument on both grounds. In that case, I think the usual order should prevail and that is vis-a-vis the 2^nd defendant, the order of costs shall be varied to “the plaintiff’s costs in the cause”.

7.In other words, the plaintiff is unsuccessful against the 1^st defendant today but succeeded in varying the costs order against the 2^nd defendant. In respect of the 2^nd defendant I propose that the plaintiff should have the costs of this summons whereas the plaintiffs should pay the costs of the 1^st defendant in respect of this summons.

[After hearing further arguments on costs]

8.In respect of costs, I order that costs of the summons shall be to the 1^st defendant in any event, but the plaintiffs shall have their costs of the summons against the 2^nd defendant.

9.The costs of the 1^st defendant against the plaintiffs, and the plaintiffs against the 2^nd defendant shall be taxed by gross sum assessment with the following directions, namely :

(a)  the 1^st defendant and the plaintiffs shall file and serve their bills of costs within 14 days hereof;

(b)  the plaintiffs and the 2^nd defendant shall file and serve their objection, if any, within 14 days thereafter;

(c)  the 1^st defendant and the plaintiffs shall file their reply within 14 days thereafter.

Mr Gilbert Collins of Messrs Boase, Cohen & Collins,for the 1^st and 2^nd Plaintiffs

Ms Jessie Sham, instructed by Messrs Tanner De Witt, for the 1^st Defendant

Mr Wilfred Tsui, instructed by Messrs Li, Wong, Lam & W.I. Cheung, for the 2^nd Defendant