XCHRX D.P.I. (HK) LTD. AND ANOTHER v. WONG ZE KEI MAIMEI AND OTHERS

HCA 11191/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11191 OF 1997

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D E C I S I O N

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1. The Applicant was the former solicitors of the 1st and 2nd Defendants herein. They were engaged by the 1st and 2nd Defendants to contest HCMP 3485 of 1997 and HCA 11191 of 1997. As a result, professional charges became payable by the 1st and 2nd Defendants to the Applicant. The amount of these charges were taxed in HCMP 4457 of 1997. By an Allocatur dated 25 October 1999, Register C Chan allowed the amount of costs at $47,939.33. Further, the Applicant obtained a Garnishee Order Absolute dated 3 December 1999 against money in an account with the Hong Kong & Shanghai Banking Corporation in the names of the 1st and 2nd Defendants.

2. The Plaintiff herein earlier obtained a Mareva injunction order in this action against the 1st and 2nd Defendants freezing their assets, including the said bank account. Para. 1 of the present application is made by the Applicant to vary the injunction order to enable the Hong Kong & Shanghai Banking Corporation to release funds to satisfy the judgment debt under the said Allocatur; that bank having indicated earlier that they would refuse to do so without a court order permitting this to be done. The Applicant has filed evidence stating that the Plaintiff herein had no objection to this application.

3. On 26 July 2000, when this application was taken out, the 1st and 2nd Defendants were represented by Messrs Yuen & Partners. A "Notice of Intention to Act in person" dated 4 August 2000 was filed by the 1st Defendant, purportedly pursuant to RHC O. 67 r. 4. I understand from the Applicant's solicitors that the said Notice has however not been served in accordance with O. 62 r. 1(1) or 1(3). In these circumstances, the said Notice has not taken effect and Messrs Yuen & Partners are (in accordance with O. 62 r. 1(1)) "considered the solicitor of [the 1st Defendant] until the final conclusion of the cause or matter".

4. Only the 2nd Defendant appears at today's hearing and, through Messrs Yuen & Partners, indicates that he would not oppose this application. I should mention in fairness to the 1st Defendant that it appears from the address given in the said Notice that she is now kept in custody.

5. Taking all circumstances into account, I consider it is appropriate to proceed with this application and grant an order in terms of para. 1 of this application.

6. Paras 2 and 3 of this application are related to the costs payable for this application. The Applicant asks me in effect to fix them at $15,000.00 in accordance with O. 62 r. 9(4)(b). Mr Tang for the Applicant informs me that the costs in fact exceed that amount but the Applicant is willing to accept a lesser sum of $15,000.00. No objection has been raised by any party against this part of the application. In these circumstances, I will also grant an order in terms of paras 2 and 3 hereof.