House of Steel, General Trading and Contracting Company Wll v. China Spark Ltd
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DCMP 1834/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 1834 OF 2013 --------------------------------
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------------------------------ DECISION ON COSTS ------------------------------- 1.Following the granting of an ex parte Mareva injunction to the plaintiff on 22 July 2013, I made the following order on 5 August 2013, the return date:-
2.The defendant thereafter neither filed any Affidavit evidence nor otherwise challenged the plaintiff’s application herein. 3.Both parties appeared before me on the second return date, 19 August 2013. I was informed at the hearing that the parties had come to an agreement in relation to which I was asked to make a Consent Order in terms. I made the following Order that day:-
4.As can be seen from the 19 August Order, the defendant has agreed that the funds (the subject of the injunction) were to be released to the plaintiff, thereby determining the dispute between the parties save for the issue as to costs which is to be dealt with here. 5.I have now received the written submissions on costs from both the plaintiff and defendant as directed at paragraph 3 of the 19 August Order. 6.The plaintiff asks for its “costs of these proceedings, including costs of all applications to be taxed, on a party and party basis, if not agreed.” By “costs of these proceedings, including costs of all applications” I take this to mean that the plaintiff is asking for its costs, as per paragraph 3 of the 19 August Order namely, “costs of and incidental to this Application, and costs of these proceedings.” 7.On the other hand, the defendant asks for no order as to costs. The plaintiff’s position 8.I have no difficulty with understanding the plaintiff’s submission which appears to be a straightforward one – it has succeeded and seeks the corresponding costs. The defendant’s position 9.As for the defendant’s position on costs, however, the basis of this appears at §2 of its written submission, namely:-
10.There are, immediately, two difficulties with this submission. 11.First, it ignores the fact that, as per paragraph 1 of the 19 August Order, the parties consented to extend the Mareva injunction (granted on 22 July 2013 and extended on 5 August 2013) until further order. This must mean that, far from complaining about the injunction (which the defendant now seeks to do) the parties agreed to its continuation. 12.Second, the defendant is seeking to raise points (i.e. no real risk of dissipation of assets, no full and frank disclosure and material non disclosure) that should have been raised earlier, and at the latest on 19 August 2013, and in the proper way, if that was how it chose to proceed rather than entering into a Consent Order that had the contrary effect. 13.In light of the 19 August Order it is much too late now, during the costs stage, to be raising such points attacking the propriety of the injunction itself. No point was ever taken when it could have been so taken. 14.As a result, I simply ignore these grounds as a basis to grant costs as sought by the defendant. In the absence of these grounds, there is no other basis on which the costs order sought by the plaintiff has been challenged by the defendant. 15.Even without any challenge by the defendant, I am of the view that it would be wrong to keep the plaintiff out of its costs in view of what has transpired in these proceedings, which I do not need to repeat but which I have considered fully. 16.Accordingly, I decline to accede to the defendant’s request that there should be no order as to costs. Conclusion 17.On the above analysis, I am satisfied that the plaintiff is entitled to its costs. I award costs of and incidental to this application and costs of this action to the plaintiff, to be taxed on a party and party basis, if not agreed. Summary assessment 18.The plaintiff seeks a summary assessment of its costs and for such assessment to be done by way of written submissions. I consider this to be a sensible suggestion even though I have not heard the defendant in relation to this request. 19.Although the plaintiff has suggested longer periods for the parties to file and serve their respective written submissions on the assessment of costs, I do not believe such to be necessary. I accordingly direct that:-
Mr Fung Chi Wai, of Boase, Cohen & Collins, for the plaintiff Mr Minju Kim, instructed by Cheung & Lee, for the defendant | ||||||||||||||||||||