IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 1834 OF 2013
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 August2013, 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 cometo 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 releasedto 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 19August Order.
6. The plaintiff asks for its “costs of these proceedings, including costs of all applications to be taxed, on a party and partybasis, if not agreed.” By “costs of these proceedings, including costs of all applications” I take this to mean that the plaintiffis asking for its costs, as per paragraph 3 of the 19 August Order namely, “costs of and incidental to this Application, and costsof 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 succeededand 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 materialnon disclosure) that should have been raised earlier, and at the latest on 19 August 2013, and in the proper way, if that was howit 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 proprietyof 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 viewof 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.
17. On the above analysis, I am satisfied that the plaintiff is entitled to its costs. I award costs of and incidental to this applicationand costs of this action to the plaintiff, to be taxed on a party and party basis, if not agreed.
18. The plaintiff seeks a summary assessment of its costs and for such assessment to be done by way of written submissions. I considerthis 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 theassessment 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