MARSHEL EXPORTS LIMITED (IN LIQUIDATION) v. BANK OF BARODA

HCCW 273/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO. 273 OF 2012

___________________

IN THE MATTER of SUPER SPEED LIMITED (IN LIQUIDATION)
and
IN THE MATTER of the Companies Ordinance, Cap 32 of the Laws of Hong Kong

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BETWEEN
SUPER SPEED LIMITED (IN LIQUIDATION) Applicant
and
BANK OF BARODA Respondent

HCCW 274/2012

IIN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO. 274 OF 2012

___________________

IN THE MATTER of MARSHEL EXPORTS LIMITED (IN LIQUIDATION)
and
IN THE MATTER of the Companies Ordinance, Cap 32 of the Laws of Hong Kong

__________________

BETWEEN
MARSHEL EXPORTS LIMITED (IN LIQUIDATION) Applicant
and
BANK OF BARODA Respondent

__________________

[Consolidated by order of the Honourable Mr Justice Anthony Chan dated

the 9th day of June 2015]

Before: Hon Anthony Chan J in Chambers

Date of Hearing: 23 February 2016
Date of Decision: 23 February 2016

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D E C I S I O N
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1. This is the Bank’s (the nomenclature employed in the decision herein dated 11 November 2015 (“Decision”) is adopted) applicationto vary part of the costs order nisi made in the Decision to the effect that the costs payable to the JSL by the Bank arising from its failed costs application be paidby GT, ie, the alternative Bullock order sought under para 1(b) of the Bank’s Summons dated 25 November 2015.

2. I am not satisfied that the costs order in question should be varied, and my reasons are, briefly, as follows. Firstly, The Banktook upon a difficulty application in trying to get its costs of the Summonses from the JSL (jointly and severally with GT) and lost. Costs normally follow the event, and I am not convinced that there is good reason to add to the burden of GT with this additionalcosts.

3. Secondly, I agree with Mr Fong, appearing for GT, that it would have been unnecessary for the Bank to make the costs applicationagainst the JSL (“Application”) had it protected itself with an application for security for costs (see the Decision, §68).

4. Thirdly, I believe that the Application was partly motivated by vindictiveness on the part of the Bank (see the Decision, §§58 to 59). I should add that it was alleged in a letter from the Bank’s solicitors dated 10 September 2015that the JSL was “financially driven” in purusing the Summonses.

5. Fourthly, the Bank had rejected the JSL’s offer to dispose of the Application on a drop hands basis.

6. In the premises, the Bank’s Summons is dismissed.

[Submissions on costs of the application]

7. There is no issue that the Bank should bear the costs of GT in this application and I so order. As regards the costs of the JSLincurred today, it is regrettable that the ambiguity in the Bullock order sought by the Bank has not been resolved in correspondence thereby avoiding such costs. However, in light of the ambiguity,I order that the costs of the JSL incurred today be paid by the Bank also.

(Anthony Chan)
Judge of the Court of First Instance
High Court

Mr Alexander Stock, instructed by Clyde & Co, for the joint and several liquidators of Super Speed Limited and Marshel ExportsLimited

Mr Nick Luxton, instructed by Holman Fenwick Willan, for the respondent

Mr Frederick Fong, instructed by Damien Shea & Co, for Grand Tai Electronics (HK) Limited