IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1137 OF 2009
Before: Deputy High Court Judge L. Chan in Chambers
Date of Hearing: 3 November 2011
Date of Decision: 4 November 2011
D E C I S I O N
1. This is an application for security for costs.
The plaintiff’s claim
2. The plaintiff’s claim is based on an oral agreement allegedly made in a meeting on 10 October 2007. The particulars of the allegedoral agreement are that the plaintiff would cooperate with the defendants in the development of a project to be built in Tan Ka Wanin Sai Kung. The defendants would provide the land and the plaintiff would contribute a world-class design and consultancy servicesfor the development of the project. The plaintiff would also arrange a financier, possibly from the Middle East. In lieu of designand arranger’s fee, the plaintiff would be given no less than 25 per cent shareholding of the corporate vehicle which will ownthe project. If the project should go beyond the concept design stage, the plaintiff would also be appointed as the lead consultantof the project for a separate consultancy fee.
3. However, the defendants on 6 May 2008 denied that there was the oral agreement and refused to commit to a contract. The plaintiffregarded this as a repudiation of the oral agreement and accepted it.
4. On the issue of quantum, the plaintiff pleads in the re-amended statement of claim that a 25 per cent shareholding in a corporatevehicle to own the project will have a post-development value of HK$786,950,000 and seeks the same from the defendants. Alternatively,the plaintiff claims quantum merit or damages for misrepresentation at HK$9,643,953 or the value of work done at HK$9,184,331.
5. The defendants deny the oral agreement or any misrepresentation. They deny that there was any binding agreement with the plaintiff.
The trial date
6. Apart from factual witnesses, the parties will also call expert witnesses. A 10 day trial has been fixed to commence on 17 April2012.
The application for security for costs
7. This application was taken out on 12 August 2011 pursuant to section 357 of the Companies Ordinance; Cap. 32. Section 357 provides:
Whether the plaintiff is in business
8. The defendants mainly rely on circumstantial evidence. They say that there is credible evidence showing that the plaintiff is nolonger carrying on any meaningful business. Any business undertaken in the name of “STORM” is in fact carried on by a companycalled Storm Signature Developments Group Ltd (“Signature”). Some relevant pages from a website of “STORM” have been exhibitedby both parties.
9. In the introductory page entitled “About STORM”, the first sentence reads:
10. The introduction then goes on to say that “STORM” was first established in Dubai in 2000. It then established its Asia Pacificbase in Hong Kong in 2007. The two operations in Hong Kong and Dubai are then referred to as STORM Hong Kong and STORM Dubai. Theplaintiff’s name however does not appear in the introduction at all. The impression conveyed by the introduction and, in particular,the opening sentence is that Signature is STORM or STORM Hong Kong. The viewer of this web page will not imagine that the thereis the plaintiff in the STORM Hong Kong group.
11. In fact, the plaintiff was incorporated in 2007 whilst Signature was incorporated in 2008. The reference in the introduction tothe establishment of the Asia Pacific base in Hong Kong in 2007 should be a reference to the incorporation of the plaintiff. But,unless the viewer is aware of the incorporation history of the plaintiff and Signature, he/she would not know that this should bea reference to the plaintiff and not to Signature.
12. Not only the introduction to STORM makes no mention of the plaintiff, but just refers to Signature, the same applies to the contentsof the whole website. In fact, the link to the site is called “stormsdg.com” which is made from the name of Signature and notof the plaintiff. The logo that appears on the site is also that of Signature. The plaintiff’s logo, if any, does not appearat the site at all.
13. Then there are some pages that introduce eight projects undertaken by STORM in the “China, Hong Kong” region. Five of the projectintroduction pages for the projects named (i) Fuzhou Dragon, (ii) Xiamen Harmony Towers, (iii) Huizhou Residences and Resort, (iv)Tan Ka Wan, Sai Kung and (v) Beijing Boutique Hotel say that these projects were undertaken by STORM. That can only mean Signatureto the reader. That also applies to the Tan Ka Wan project which is being relied on by the plaintiff in this action.
14. For the remaining three projects named (vi) Jurassic Springs, (vii) Kung Fu Land, and (viii) Little Switzerland, the project introductorypages and newspaper articles extracted on to the website clearly say that they were undertaken by Signature.
15. The website is absolutely silent on the existence of the plaintiff. Any ordinary viewer not privy to the STORM People cannot tellfrom the website that the plaintiff is part of STORM Hong Kong or that it had undertaken any of the projects featured in the website. Even the Tan Ka Wan project is credited to Signature.
The plaintiff’s submissions that it is in business
16. Mr Copson of the plaintiff made his 3rd affidavit to oppose the application. He said in paragraph 21 of his affidavit that:
17. However, I note that the website expressly says that Signature has undertaken three projects. Hence, it is not merely for holdingthe intellectual property rights owned by the STORM Group.
18. Mr Copson also said that the plaintiff has undertaken six of the featured projects whilst Signature only carried out the last twoon the list, namely Kung Fu Land and Little Switzerland. However, the project page for Jurassic Springs clearly states that thisproject was also undertaken by Signature.
19. Mr Copson also said that the word “STORM” as used in the website is a reference to the whole group and not any particular company. However, even if this is the intention, it does not explain why the plaintiff’s name and its relationship to the STORM Group werenot mentioned at all.
20. Mr Rhoda for the plaintiff submitted that the word STORM is used loosely and whenever STORM Hong Kong is mentioned or STORM is mentionedin the Hong Kong context, it is meant to cover all STORM companies in Hong Kong. But again, this explanation cannot tell why theplaintiff is not mentioned at all.
21. The contents of the website, the name of the link, the featured logo and the newspaper excerpts are all for the promotion of Signatureand STORM Dubai to the exclusion of the plaintiff. Even the plaintiff’s project in Tan Ka Wan is credited to Signature. Thisclearly shows that those in STORM do not intend to promote the plaintiff or for the plaintiff to have any business.
Delay in payment of rental by Signature
22. The defendants also refer to the fact that the paid-up capital for both the plaintiff and Signature is HK$100. The defendants havealso obtained a credit report on the plaintiff in April 2011. The report refers to five warrants of distraint issued by Signature’sformer landlord from the District Court against Signature. They are:
The plaintiff’s explanation on Signature’s rental payment
23. Mr Copson explained that it was the practice of the former landlord to issue such warrant even if payment was made only a few dayslate, but the warrant would not be served unless the rental should be outstanding for a longer time. He further said that Signaturealways paid rent a few days or even weeks late not because of financial reasons, but because either he or the other director, MsLee, was absent or overseas on business.
24. If it was an occasional delay, then this may well be an explanation. Furthermore, the delays were not for a few days or weeks,but were repeatedly for over two months. I also do not understand why the signing of cheques could not have been better arrangedif there were funds in the bank account to be drawn.
25. I would add that Mr Copson said that none of the warrants had been served on Signature and he was not aware of anyone of them. ButI do not understand why the landlord should have incurred money and human resources to issue these warrants if they were not intendedto be used. I do not find Mr Copson’s explanation reasonable or probable.
No documentary evidence in rebuttal by the plaintiff
26. Despite the defendant’s reference to the STORM website to show that the plaintiff is not in business and the warrants to showthe financial plight of Signature which lasted until the beginning of this year, Mr Copson still refused to provide any concreteevidence to put forward his desired picture. He did not exhibit any contract or redacted version of contracts to prove the plaintiff’sundertaking of any project. He did not give any information on the number of employees and/or the payroll of the plaintiff. Hedid not produce any audited or unaudited account of the plaintiff. He only relied on his own words. He explained in paragraph 40of his 3rd affidavit the reasons for not being more forthcoming:
27. I do not think a few pages of the contracts showing the identities of the parties and the names of the projects or the number ofstaff employed or even the audited and unaudited accounts would be confidential information. The defendants are not the plaintiff’scompetitor and are not proposing to sell any goods to the plaintiff on credit. On this point, I also refer to the words of FuadJA in Tufnell Investment Limited and Others v Thosowin Properties Limited and Another  2 HKC 14 at 16C-D:
28. Mr Rhoda submitted that there is no evidence that either the plaintiff or Signature is currently in poor financial health. However,there is indeed evidence showing that those behind the plaintiff do not intend the plaintiff to be in business and the website ofSTORM does not say that the plaintiff is in any business at all.
29. On the evidence and submissions of the defendants and the plaintiff’s failure to provide documentary proof to rebut the defendants’case, I find that there is credible evidence that there is reason to believe that the plaintiff will be unable to pay the costs ofthe defendants if the defendants succeed in their defence.
30. However, Mr Rhoda submitted that the application was made very late. The action was commenced on 5 May 2009. The summons was takenout more than two years after the commencement of the action and more than six months after the final CMC on 13 January 2010. ButI would note that Signature’s default in prompt payment of rental only came to light in April 2011. There was then indeed a delayof four months as the application was only taken out on 12 August 2011. However, when the application was taken out, there was stilla period of eight months before the trial would commence. The trial is still more than five months away. I therefore do not thinkthe delay alone is sufficient to defeat this application. I allow the application. I now consider the quantum.
31. The defendants claim a total sum of HK$3,431,641 as security for all costs incurred and to be incurred. Mr Rhoda said that HK$1,136,326is for prior costs and HK$2,293,000 is for future costs.
32. Since the application was made late, I would exercise my discretion not to order any security for prior costs. For the future costs,about HK$2 million is for senior and junior counsel. In the light of the alternative amounts of claim in the action, I think itis reasonable for senior and junior counsel to be engaged for the defence.
33. Mr Rhoda adopts a rough and ready approach and says that the security should not be beyond HK$1 million. Mr Wong, counsel for thedefendants, however, submitted that the sum claimed is very reasonable. I would also adopt a rough and ready approach. I ordersecurity at HK$1.5 million.
34. I therefore order that the plaintiff do within one month give security for the 1st, 2nd and 3rd defendants’ costs in the sum ofHK$1.5 million on the ground that there is reason to believe that the plaintiff will be unable to pay the costs of the 1st, 2nd and3rd defendants if successful in their defence and that in the meantime all further proceedings be stayed.
35. I further make a costs order nisi that costs of and occasioned by this application be to the 1st, 2nd and 3rd defendants. I also order these costs to be summarilyassessed by me at a 9.30 am hearing to be fixed by the parties outside the next 14 days unless an application for variation of thisorder nisi should be issued within the next 14 days or the amount can be agreed.
Mr Robert Rhoda, of Messrs Clyde & Co., for the Plaintiff
Mr Jonathan Wong, instructed by Messrs Eric Lai, Jason Cheung & Co., for the 1st, 2nd and 3rd Defendants