RE TAN KIN, GEORGE

HCMP 1087/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1087 OF 2011

(ON AN INTENDED APPEAL FROM HCB 1873/2003)

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BETWEEN

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AND

CACV 93/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 93 OF 2011

(ON APPEAL FROM HCB 1873/2003)

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BETWEEN

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(Heard Together)

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J U D G M E N T

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Hon Cheung CJHC :

1.  This is an argument on costs arising out of an application for leave to appeal out of time from the order and decision of To J given on 15 May 2011.  The facts of the dispute have been clearly set out in the written decision given by his Lordship, and it is not necessary to repeat them here.  Those who are interested to find out the facts are referred to the decision given by the judge.

2.  The intended appeal has been overtaken by subsequent events.  The appeal lodged by Mr Choi against the decision made by Mr Recorder Chow SC at the trial of a preliminary issue has been dismissed by the Court of Appeal.  Mr Choi, through counsel, has accepted before this Court that there can be no further objection to the payment out of the second dividend in issue in favour of the Applicant, effectively owned and controlled by his opponent, ie Mr Chiu.  So upon Mr Choi through counsel undertaking to enter into a consent order to effect the payment out immediately of the money in favour of the Applicant, Mr Ko, on behalf of the Applicant, the intended appellant, has asked for leave to withdraw his application for leave to appeal out of time.

3.  The only outstanding question is costs. We have heard counsel’s arguments.  For my part, I believe that the fairest order in the circumstances of the present case is that the parties, excluding the Trustees, whose position I will come to in a moment’s time, shall bear their own costs of the intended appeal.

4.  The application for leave having been withdrawn, there is no question of disturbing the costs order below.  In any event, I see no reason why the costs order made by To J should be disturbed.

5.  So far as the costs of the intended appeal are concerned, very briefly, in my view, regardless of the arguments over the proper procedure to adopt to ask for payment out before To J, the substantive reason given by his Lordship to refuse the application, that is, that there was then a pending appeal to the Court of Appeal from the decision of Mr Recorder Chow, could not be faulted, given at that time there was no certainty as to who the true beneficial owner, if I may use the term loosely, of the Applicant really was.

6.  So insofar as the Applicant asked for immediate payment out of the second dividend, the dismissal of its application could not be criticised.  It was well within the discretion of the judge to do so.

7.  On the other hand, if one looks at the matter globally, Mr Choi’s side must bear responsibility also.  As has been demonstrated by the dismissal of his appeal by the Court of Appeal, the Applicant was and is owned by Mr Chiu. It was wrong for Mr Choi’s side to use a local company in the same name as the Applicant to receive the first dividend from the Trustees. That gave rise to the difficulties and confusion that the Trustees subsequently faced when the Applicant and Mr Chiu surfaced, and that in turn led to the payment in and thus the question of payment out.

8.  One other factor that I would bear in mind is the fact that the Applicant was late in making its application for leave to appeal, and it had to come to court to ask for an indulgence.

9.  Looking at the matter in the round, in my view, the fairest order to make is to make no order as to costs as between the two opponents, Mr Chiu and Mr Choi.

10.  But the position of the Trustees is different.  They were brought into this intended appeal because the intended notice of appeal sought costs against the Trustees.  So prima facie, the Trustees should get costs from somebody. Given my earlier view, the fairest order is to make the two parties equally responsible for the costs of the Trustees, save for the costs of the preparation of the Trustees’ skeleton submissions dated 21 June 2011, in which the Trustees took a position against the application for leave, rather than the neutral position that the Trustees eventually adopted.  Mr Chung, for the Trustees, accepted that the Trustees should not get the costs of that skeleton submissions.

11.  So save for the costs of that skeleton submissions, the Trustees shall have their costs from the two parties equally.

Hon Chu JA :

12.  I agree with the outcome and also the reasons given by the Chief Judge.