Super Cruise Ltd v. The Registrar of Companies

HCMP 1893 / 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1893 OF 2009

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Before: Hon Au J. in Chambers

Date of Company Registrar's written submission: 25 June 2010

Date of Mr. Lieu's written submission: 29 June & 16 July 2010

Date of JZD's written submission: 28 June, 2, 6, 13 & 19 July 2010

Date of Decision: 15 September 2010

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DECISION ON COSTS

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A. Introduction

1.On 17 June 2010, I handed down the Decision (“the Decision”) in relation to various applications under HCA 1645/2009 and HCMP 1893/2009.

2.This is an application to vary the costs order nisi I made in the Decision in relation to HCMP 1893/2009. 

3.This decision should be read together with the Decision. For convenience, I also adopt the abbreviations used therein.

4.After dismissing HCMP 1893/2009, the costs order nisi I made at paragraph 111 of the Decision is “costs be to the Registrar and JZD to be paid by Mr Lieu, to be taxed if not agreed”.

5.Mr Lieu, the Registrar and JZD now all apply to vary the costs order nisi, of which they have submitted their written submissions.

6.I will now deal with their respective applications.

B.      The Registrar’s Application

7.In her letter dated 25 June 2010, the Registrar asks to have the costs order nisi made in her favour to include the reserved costs (“the Reserved Costs”) incurred under HCMP 1893/2009 pursuant to the order made by Barma J respectively on 29 October 2009 and 21 January 2010. The first one is in relation to the directions hearing held on 29 October 2009, while the second one is concerned with a joint consent application made by the parties for the filing of further evidence.

8.By his solicitors’ letter dated 29 June 2010, Mr Lieu agrees that the Registrar’s costs should include the Reserved Costs.

9.Given Mr Lieu’s agreement (which I think is rightly made), I therefore vary the costs order nisi concerning the Registrar to costs, including the Reserved Costs, be to the Registrar to be paid by Mr Lieu, to be taxed if not agreed.

C.      JZD’s Application and Mr Lieu’s Application

10.Their applications are inter-linked and will be dealt with together.

11.Following the Registrar’s above application, JZD also applies by letter dated 28 June 2010 to have the costs order nisi varied to include their Reserved Costs.

12.Insofar as JZD’s costs is concerned, in his above letter dated 29 June 2010, Mr Lieu also agrees that the said costs should include the Reserved Costs, but he asks to further vary that part of the costs order nisi to the extent that JZD’s costs (inclusive of the Reserved Costs) be in the cause of HCA 1645/2009.   Mr Lieu submits that that would be a proper costs order because (a) JZD sought to intervene in the name of Super Cruise, (b) but Super Cruise’s true ownership and control are still in dispute which would only be eventually determined in HCA 1645/2009, and (c) it is therefore only right and just to have JZD’s costs in HCMP1893/2009 to be in the cause of HCA 1645/2009.

13.Later, by his solicitors’ letter dated 16 July 2010, Mr Lieu abandons the above position and revises his contentions to submit that the costs order nisi relating to JZD’s costs should be varied to the extent that the Intervener (being Super Cruise) and Mr Lieu should each bear its/his own costs.  The principal basis of these revised submissions is that the Court has expressed disapproval (in dealing with the Want for Authority Summons in the Decision) of the conduct of both Mr Lieu and JZD in each trying to use the proceedings to “show” their control of Super Cruise notwithstanding that that is a core dispute between the parties. The same observation should therefore also apply in HCMP 1893/2009, where despite the dispute on ownership, JZD still sought to use Super Cruise to intervene.

14.JZD however says the question is whether JZD could intervene in HCMP 1893/2009 on its own right^[1], and it submits^[2] that it could not because:

(1)   The subject matter of the Originating Summons under HCMP 1893/2009 is the validity of the Form D2A and Form R1 which were filed at the Companies Registry by the Receivers in the name of and on behalf of Super Cruise. 

(2)   The intervention eventually made was triggered and necessitated by Mr Lieu’s own act in commencing the Originating Summons in the name of Super Cruise in the first place. 

(3)   However, neither JZD nor the Receivers have the necessary locus to intervene in their own right as neither of them can claim to have an interest in the outcome of the proceedings.   As such, they were required to intervene also in the name of Super Cruise.

15.Both sides’ submissions have some force.  But I think the real question I should address is that the costs should be given to the “intervener” but not who is said to be behind it.   To that extent, I think it is a slip on the part of the Court to say at paragraph 11(2)(b) the Decision that the Intervention Summon was JZD’s and in the costs order nisi that the costs under HCMP 1893/2009 be to “JZD”.

16.The correct and true position is that the intervention was made by Super Cruise as the intervener, and, upon the dismissal of the application under the Originating Summons, the costs should be given to the intervener but not JZD.    Whoever is and should be “behind” Super Cruise is irrelevant to the question of costs under the Originating Summons application.   This is underlined by the fact that the intervention by Super Cruise was consented to, and it was therefore not challenged that the intervention by Super Cruise was not properly taken out. 

17.After considering the parties’ above submissions, and looking at the correct identity of the intervener, I believe that the just and proper costs order in the circumstances should be that costs (including the Reserved Costs) be to the intervener to be taxed if not agreed.  

18.I therefore vary this part of the costs order nisi under HCMP 1893/2009) to “costs (including any reserved costs) be to the intervener to be paid by Mr Lieu, and to be taxed if not agreed”. 

D.      Conclusion

19.For the above reasons, I will vary the costs order nisi to as follows:

“Costs of the Originating Summons (inclusive of any reserved costs thereunder) be to the Registrar and the Intervener to be paid by Mr Lieu, and to be taxed if not agreed”.

20.I note that Mr Lieu has also asked the Court to provide in the costs order a direction as to the time spent at the hearing on the Originating Summons application.  This is effectively part of the taxation exercise. I would decline to do so and leave it to the taxing Master to properly deal with it.

21.Finally, I further make an order nisi that:

(1)   The Registrar’s costs in the present application be in the cause of the Originating Summons.

(2)   There be no order as to costs of Mr Lieu's and JZD's applications to vary the costs order nisi, as neither party can be regarded as the ultimate winner in their applications. 

Messrs King & Wood, for Mr. Lieu.

Messrs Wilkinson & Grist, for JZD.

Department of Justice, for the Registrar.