Tgi Friday's Inc v. Perfect Wave Ltd

HCA2376/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2376 OF 2012

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D E C I S I O N

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1.This is an application by the Defendant for leave to appeal against my Order dated 4 January 2013 whereby a number of directions were given on the further conduct of two applications, namely, an application by the Plaintiff for an interlocutory injunction against the Defendant and a cross-application by the Defendant for security for costs against the Plaintiff.

2.As part of those directions, I ordered that the two applications be heard at the same time (“Direction”).

3.The proposed appeal is concerned with the Direction.  It is quintessentially a matter of case management.  The proposition contained in the second part of para 9 of the Statement as to the Background and Proposed Grounds of Appeal is inaccurate.  I ordered the joint hearing of the two applications and, to my recollection, said to Mr Ah-weng who appeared for the Defendant that I could not have the parties jumping the queue all the time.  It was the best that could be done in the circumstances.

4.Before I gave the Direction, it was said in the course of the hearing by Mr Pao who appeared for the Plaintiff that the hearing of the Defendant’s application might not ultimately be required.  He accepted that as a foreign company the Plaintiff was, prima facie, liable to provide security for the Defendant’s costs. The matter might be resolved amicably subject to the issue of quantum.

5.In my view, which was ventilated in the course of the previous hearing, it will be a matter for the Judge hearing the applications as to how they should be disposed of so as to serve the justice of the case.  It will be a matter for the Judge whether the security for costs application should be dealt with first and, if he agrees with it, to see to it that the Defendant will not be prejudiced.  It will be open for the Judge to ask for an appropriate undertaking on the costs (see Hong Kong Civil Procedure 2013, Vol 1, para 23/3/27) before proceeding with the injunction application.

6.Mr Pao who appears for the Plaintiff today has made a number of valid points in his Skeleton Submissions.  He is correct in submitting that there is no automatic right to a stay of proceedings even if the Defendant succeeds in its security for costs application (see Hong Kong Civil Procedure 2013, para 23/3/19).

7.I regret to say that I am unable to see any merits in this application and it is accordingly dismissed.

8.As to costs, I decline Mr Pao’s application for costs on indemnity basis because of the lack of merits in this application.  I do so not without some reluctance.  I order that the costs of this application be to the Plaintiff to be taxed if not agreed and paid forthwith.

Mr Jin Pao, instructed by Baker & McKenzie, for the plaintiff

Mr Li Chau Yuen, SC, instructed by Chan, Lau & Wai, for the defendant