XCHRX KINGSTON SECURITIES LTD. AND ANOTHER v. AU HON MAN DAVID

HCA 10407/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. The plaintiff's appeal against the order of the master giving unconditional leave to defend will be allowed, and I propose to give judgment for the plaintiff, although it is arguable that Kingston Finance Limited ("KFL") is entitled to set-off against the plaintiff's claim the losses KFL claims to have suffered in so far as it cannot recover moneys due to it from clients introduced to KSL by the plaintiff. (It seems to me that this result can be said to have been contemplated by the agreement which the plaintiff made with KSL on or about 29 March 1996, although KFL is not a party subscribing to the agreement of that date. The expression "the Firm" as used in that agreement seems to support this. The underlying contract on which all parties rely may arguably be said to have been a contract made between the plaintiff, on the one hand, and both KFL and Kingston Securities Limited ("KSL"), on the other hand.) However, there is no defence to the plaintiff's claim as to the moneys standing to his credit in his account with KFL, and (as I have said) I will give judgment in the plaintiff's favour against KFL accordingly. I will stay execution of the judgment, pending the trial of any counterclaim KSL or KFL may have against the plaintiff, and I propose to order that the costs of the plaintiff's application for summary judgment be costs in the cause, so that the costs will follow the event, i.e. whether the plaintiff succeeds or fails on the KFL/KSL counterclaim.

2. I will give leave to the plaintiff to serve his notice of appeal out of time.

3. I will dismiss the plaintiff's summons to strike out the KFL/KSL action. I will not disturb the master's order for consolidation of the two actions.

4. I will make no further order as to costs.