A R Evans Capital Partners Ltd v. Novel Alternative Investment Ltd and Others

HCMP1991/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1991 OF 2011

------------------------

------------------------

Before: Deputy High Court Judge P. Ng SC in Chambers

Date of Hearing : 22 February 2012

Date of Judgment : 22 February 2012

-------------------------

J U D G M E N T

--------------------------

1.On 16 February 2012, I ordered the petitioner to provide security for the 1^st to 4^th respondents’ costs in the sum of HK$1,500,000 to be paid into court within 14 days. This morning, Mr Chu for the 1^st to 4^th respondents invites me to shorten the time to 7 days. The reason given is that his clients have a pending application to strike out the petition, scheduled to take place on 28 February 2012, and they wish to have security for their costs before then.

2.I am not persuaded that I should vary the time for the provision of security for costs by the petitioner from 14 days to 7 days, or that the hearing date of the striking out application should dictate how much time the petitioner should have for making funds available to provide security.  It seems to me that the hearing date of that application is entirely fortuitous.  I therefore refuse the application to vary the time for the provision of security.

3.Mr Chu then asks me to vary the costs order nisi I made on 16 February 2012 so that the 1^st to 4^th respondents are to have their costs on an indemnity basis, and forthwith instead of in any event.  I have considered the submissions of Mr Chu with some sympathy and I must say I am not very impressed with the petitioner’s late application for business registration and part XI registration: see para. 32 of my Judgment dated 16 February 2012.   But in the end, the petitioner did succeed in reducing the security for costs by a substantial amount and it could only do that by coming forward to defend the application.  I am therefore not persuaded that it is an appropriate case to order indemnity costs, so I refuse that as well. 

4.As to the taxation and payment of costs forthwith, the argument of Mr Chu is that there are parallel proceedings under s168BC of the Companies Ordinance between the petitioner and his clients and a hearing in those proceedings is also scheduled on 28 February 2012.  There is hardship to his clients in having to incur costs in both proceedings.  I do not believe I can take into account the existence of parallel proceedings in considering this issue.  As I have heard no other argument as to why costs should be taxed and paid forthwith, I remain of the view that the costs order nisi I made is the appropriate order and I make that absolute today.

Mr Mark West, of Kennedys, for the petitioner.

Mr David Chu, of Dechert, for the 1^st to 4^th respondents.

The 5^th and the 6^th respondents, in person, absent.