Re Premier Distributors (HK) Ltd

HCCW 375/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO 375 OF 2012

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R U L I N G   O N   C O S T S

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1.This is the petitioner’s application to vary the costs order nisi made on 15 May 2013 in favour of Premier.  The facts are set out in §§ 2 – 16 of the Reasons for Judgment in HCCW 311/2012 and §§ 2 – 3 of the Judgment in HCCW 375/2012 to which reference should be made.

2.The petitioner submitted that, instead, there should either be no order as to costs or that the costs of Premier be paid by Fortress.

3.The basis of the petitioner’s submission is that Mr Mahtani chose to put up the “wrong party” defence instead of clarifying the roles of Fortress and Premier (which he was in a position to do being in control of both companies).  It was said that the petitioner “was put in the difficult and awkward position of having to choose between Fortress and Premier regarding the liability arising from the LCs” and that “realistically the stance of Fortress in HCCW 311/2012 allowed the petitioner no choice but to present petition also against Premier”.

4.The difficulty with that submission is that the petitioner wished to make both Fortress and Premier liable for the same debt.  At the hearing, Ms Wu made her position clear: she was not content with obtaining a winding up order against Fortress; she was adamant that Premier was independently liable as applicant under the LCs.  That submission failed and there is no valid reason why the usual order that costs follow the event should not apply.

5.The application to vary the costs order nisi is dismissed with costs to Premier.

Ms Teresa Wu, instructed by Clyde & Co, for the Petitioner

Mr William Cheng, instructed by Cheung & Choy, for the Respondent