TEXUNA INTERNATIONAL LIMITED v. WOCOM COMMODITIES LIMITED

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Appearances: Tong for the Plaintiff.

Ribeiro for the Defendant.

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DECISION

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1. As I have indicated in my judgment, I have found in favour of the Plaintiff on those issues defined in that judgment. The rate of interest on the judgment sum has been agreed between the parties as 12% per annum, to run from 23rd January 1983 until to-day, and from to-day until payment at the prescribed rate, and, accordingly, I make an Order in those terms on the judgment sum of US$348,886.79.

2. The question of costs is more difficult. I indicated in my draft judgment that I was minded to award the Plaintiff no more than half its costs of the hearing. We have spent an hour and a half on this matter to-day, and Mr. Tong has very properly reminded me there were 19 hearing days, one of which was taken up almost entirely on a hearsay notice of the Defendant. A large number of extra days over those calculated, was taken up because of a late plea relating to mitigation of damage, put in by amendment of the Defence. He is perfectly correct, and 50% is too high a percentage. The reason that I came to the preliminary conclusion that the Plaintiff should not have all its costs was this : A great deal of time was spent during the hearing, especially in quite proper cross-examination, on matters which were finally abandoned on, I believe, the 18th or it may even be the 19th day; but certainly in the final speeches. It is in respect of those matters, that I felt the Court should make manifest its disapproval by depriving the Plaintiff of a proportion of its costs. I am still so minded. I have looked through my notes to-day, and my notes of even the early part of the evidence-in-chief reinforce the view that I formed earlier. Much time was spent, unnecessarily, it now transpires, on issues relating to the "third group" of speculative dealings, which were later abandoned.

3. My decision, therefore, is that there will be an Order that the Plaintiff recover its costs of only four-fifths of the hearing days (other than that day attributable to the hearsay notice).

4. I now pass to deal with that day, because I reserved those costs until after judgment. The application, which was to put in the proof of Saxena, was made very late. The explanatory affidavit was sworn actually on the day of the hearing, which was the 14th of March. In that application, some very important issues were raised, one at least arising out of what I may call "the third question" in the judgment of my brother Hunter in Attorney-General v. Lui [1984] H.K.L.R. 275.Another important factor is that the points raised in opposition to the admission of Saxena's proof were sound, and were of great value to me in the trial itself. It was not a wasted exercise. Normally the costs would follow the event, and, as the application succeeded, the Defendant should have its costs. But, in this case, I believe the normal principle ought not to apply. In relation to the matters I have just canvassed, quite clearly the Defendant was, in a considerable way, at fault. Quite clearly the Plaintiff's opposition was proper, both on the legal issue and on the factual issue, and it transpired that the Plaintiff's submissions were of great assistance in the trial itself, because the document itself, (Saxena's "proof"), was thoroughly analysed in the course of that opposition to the application. In my judgment, on those facts, it would be wrong to order costs in favour of the Defendant by awarding costs against the Plaintiff. In my judgment, the proper Order to reflect the state of affairs I have just described, would be to make no order as to the costs of that part of the nearing on the 14th March, namely from 10 a.m. to 3 P.m. which related to the opposition to put in Saxena's "proof". Each side will bear its own costs of that proportion of that day.

5. The Orders to which I have referred relate only to the hearing. The Plaintiff will have its remaining costs of the Action, insofar as they have not already been dealt with in earlier Orders.

Representantion:

Solicitors : Wilkinson & Grist for the Plaintiff.

Robert W.H. Wang & Co. for the Defendant.

HCA007157A/1984

BETWEEN

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Coram: Jackson-Lipkin, J. in Court.

Date of hearing: 24th May, 1985.

Date of decision: 24th May 1985 at 11.32 a.m.

Appearances : Tong for the Plaintiff.

Ribeiro for the Defendant.

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DECISION

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6. This is an application for a stay pending appeal, and I am told by Mr. Ribeiro that he has instructions that the Defendant will appeal.

7. In support of the application, there has been put before me affidavit of Mr. Miller, sworn to-day.

8. In opposition I was asked to look at a letter from the Chief Manager of the Main Branch in Hong Kong of Indian Overseas Bank: That was not opposed, and I have looked at it : It will be marked Exhibit "S. of E. 1." I was also asked to look at Exhibit 16 in the trial and to refer to the contents of Exhibit 25.

9. In my judgment, the Defendant has not shewn sufficient grounds for a stay of execution such as fall within the accepted general principles for the exercise of this form of discretion. There are no mandatory rules of what should be averred: Indeed there are no mandatory rules of what should be proved. But, in my judgment, the Defendant has not produced sufficient satisfactory evidence that there is a reasonable degree of probability, or even of possibility, that it would not recover the sums paid if the appeal were successful. In saying that, I have not overlooked the evidence that I heard in the trial of the very large turnover of the Plaintiff and of its general assets. I bear in mind also the documents at which I have been asked to look.

10. The application is dismissed.

11. If the Defendant does appeal, and, by then, has more convincing evidence that there is a risk, a good risk, a reasonable risk, that it would not get the money back if it succeeds on appeal, it can then make a fresh application to the Court of Appeal.

12. By consent, there will be no order as to costs on the application for a stay of execution.