Aktieselskabet Dansk Skibsfinansiering (Body Corporate) v. Wheelock Marden & Co Ltd and Others

CACV000109B/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 107, 109 AND 113 OF 1997

(ON APPEAL FROM HCMP 2625/1988 AND HCA 1670/1989)

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Coram: Hon Godfrey VP in Chambers

Date of Hearing: 2 May 2000

Date of Directions: 2 May 2000

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DIRECTIONS

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Hon Godfrey VP:

1. The plaintiff accepts that, since costs follow the event, the proper order here, the plaintiff's action having failed, is an order dismissing the action (the judge's order below being set aside) and an order that the defendants' costs of the action be taxed (if not agreed) and paid by the plaintiff to the defendants. But the plaintiff says, and the defendants accept, that a special order as to costs is needed to take account of the fact that the defendants failed on two discrete issues at the trial, "the de facto director" and the "hearsay notices" issues. There is also an "illegality" issue, as to which the plaintiff says, but the defendants do not accept, that a similar special order is needed. (There are also other matters which the plaintiff says might justify a special order, in the light of the judge's observations in his judgment upon such matters.)

2. Both parties agree, and I accept, that a hearing before the Court of Appeal will be necessary to determine what order as to the costs below ought to be made in place of the orders made by the judge.

3. I am also asked to give directions designed to ensure that the matter is disposed of as quickly and as economically as possible.

4. I DIRECT that:

1.           The plaintiff shall file and serve on the defendants no later than 4.30 p.m. on Friday 2 June 2000 a written submission as to the order to be made by the Court of Appeal as to the costs below, containing (among other things) a statement of the issues to be considered by the Court of Appeal and a summary of the plaintiff's submissions upon those issues, and accompanied by a draft of the order which the plaintiff invites the Court of Appeal to make.

2.           The defendants shall file and serve on the plaintiff no later than 4.30 p.m. on Friday 16 June 2000 a like written submission and order.

3.           The plaintiff shall (if so advised) file and serve on the defendants no later than 4.30 p.m. on Friday 23 June 2000 a written submission in reply to any point raised by the defendants in their written submission and not already dealt with by the plaintiff in its original written submission.

5. In these circumstances, I am of opinion that it would be appropriate to allot four days for the hearing of the matter, and I shall ask the listing authorities to try and make available for the purpose the four days commencing on Tuesday 11 July 2000, the matter to be listed before me and two other judges qualified to sit, one being Mrs Justice Le Pichon (if possible). But the matter may be listed to be heard on any date and before any division of the Court (however constituted) if these arrangements prove impracticable.

6. The costs of today's directions hearing will be costs in the substantive hearing of the application for an order as to costs.

Representation:

Mr Clifford Smith, instructed by Messrs Holman Fenwick & Willan for the Plaintiff

Mr Michael Bunting, instructed by Messrs Richards Butler & Messrs Dibb Lupton & Alsop for the Defendants