BHAGWAN SHANKARDAS MOORJANI v. THE KA WAH BANK LTD

HCA16440/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.16440 OF 1998

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J U D G M E N T (2)

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1. The facts of this case were already stated in my original judgment delivered on 10 March 2000 and I shall not repeat them here. Thereafter, the Court of Final Appeal allowed the defendant's appeal and dismissed the plaintiff's claim. Judgment was delivered on 8 March 2002.

2. Subsequently, the plaintiff had made repeated requests to the Court of Final Appeal to stay the order of the Court of Final Appeal and to re-open the case for further argument. The Registrar of the Court of Final Appeal, in her letter dated 15 March 2002, replied as follows :

" Your document seeking to make a further application for a stay has been received.

In my letter dated 12 March 2002, I informed you that your application for a stay contained in your letter dated 9 March 2002 was considered and rejected by members of the Court.

I am directed to re-iterate that the Court's determination of the appeal is final and cannot be re-opened for further argument. No grounds for any stay exist and your renewed application cannot be entertained.

I am also directed to inform you that the Court will not be engaging in any further correspondence with you on this matter."

3. On 29 April 2002, the plaintiff issued a summons for an account of profit and the same was duly dismissed with costs by Master Mary Yuen on 7 May 2002.

4. On 24 May 2002, the plaintiff instituted another action by HCA1970/2002 in respect of the same subject matter. Deputy High Court Judge Carlson struck out the plaintiff's claim on 15 August 2002 and the same is now under the plaintiff's appeal.

5. The present application of the plaintiff is quite incomprehensible. As far as I can gather, he wanted to adduce further evidence and contended that as of 4 August 1998, there were only two of his contracts subsisting but the Court of Final Appeal assumed that all subsisting five Yen contracts were his. He claimed that those documents in support were recovered by him in India on 7 January 2002, i.e. before the hearing in the Court of Appeal on 25 February 2002. However, according to him, the Court of Final Appeal did not take into account or give effect to the new evidence put forward.

6. Since the Court of Final Appeal did not allow the plaintiff to re-open the case for further arguments and did not accept the plaintiff's attempt to adduce new evidence for further argument, I cannot see why and how I should allow the plaintiff to put forward new evidence at this stage of the proceedings when the matter was completely considered by the final court. Accordingly, the plaintiff's application to adduce further evidence and to re-open the case for further argument is dismissed with costs to the defendant, to be taxed if not agreed.

7. The defendant, on the other hand, applied for interim payment of costs in the sum of $500,000. The plaintiff is now under a Prohibition Order restraining him from leaving Hong Kong on the condition that he should pay $500,000 as security. Mr Ho for the defendant told me this morning that this interim payment sum is the same as the security sum and thus if the plaintiff paid this amount, the Prohibition Order will be discharged. Taxation for the Bill of Costs was heard on 8 July 2002 but due to the delay of the plaintiff, it was adjourned to 24 September 2002.

8. As can be seen from the Bill of Costs, the total amount of costs and disbursements claimed against the plaintiff up to and including the trial at the Court of First Instance (but excluding any costs incurred in the Court of Appeal and the Court of Final Appeal) already exceeded $950,000. It is therefore reasonable that the plaintiff should make interim payment for costs in the sum of $500,000 as prayed for in the defendant's summons.

9. The plaintiff had previously paid security for costs to cover the defendant's costs of the present proceedings in the sum of US$20,000. He also paid security for the appeal before the Court of Appeal in the sum of $60,000 but both of these sums were returned to him after the Court of Appeal allowed his appeal in March 2001. The plaintiff told me this morning that he had no money to pay the defendant. I am afraid this is not a ground for refusing to make the order. Accordingly, I order in terms of the defendant's summons.