I have since handed down directions for paper disposal of the Leave Summons. Pursuant to those directions, Mr Mariani has
”) and Mr Martin Ho and Ms Bonnie Cheng have respectively; Written Submissions by Mr Martin Ho
SHALINI NARESH KUMAR BASANT v. STEVENSEC SERVICES LTD
[2025] HKCFI 5461
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DECISION ON APPLICATION FOR LEAVE TO APPEAL
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1. I refer to the Decision which I handed down on 9 April 2025 (the “Decision”)[1]. I refer further to the Decision on Costs which I handed down on 17 July 2025[2] (the “Decision on Costs”). I use the same terms and abbreviations as used in the two decisions.
2. At §32(b) of the Decision, I made a costs order nisi (the “Costs Order Nisi”) that the costs of the Respondent and Interveners of and occasioned by the Conversion Application be borne by the Applicant and be summarily assessed on an indemnity basis, with certificate for 2 counsel in the case of the Interveners, and be paid by the Applicant personally forthwith.
3. For reasons set out in the Decision on Costs, I at §19 refused the Applicant’s Costs Application for variation of the Costs Order Nisi. The Costs Order Nisi has since become absolute. I further ordered, specifically at §19(b) of the Decision on Costs, that the costs of and incidental to the Costs Application be paid by the Applicant personally on an indemnity basis, to be assessed summarily (collectively the “Costs Orders”).
4. By summons of 31 July 2025 (the “Leave Summons”), the Applicant seeks leave to appeal against the Costs Orders, for the following orders (as set out in the draft Notice of Appeal attached to the Leave Summons (the “Draft NOA”):
(1) The costs of each of the Applicant, the Respondent, the Trustee (if any), and the Interveners of and occasioned by or incidental to the Conversion Application and the Costs Application be paid out of the fund of the K.S. Shahani Trust (the “Trust Fund”) on an indemnity basis, with certificate for two counsel in the case of the Interveners and the costs of and incidental to this application be likewise paid out of the Trust Fund.
(2) In the alternative to (1) above, that the Respondent bear its own costs of the Conversion Application and the Costs Application and that there be no order for the costs of and incidental to this application.
(3) In the alternative to (1) and (2) above, and to the extent that it is ordered that the Applicant bear the costs of the Interveners and/or the Respondent in the Conversion Application and/or the Costs Application, that the costs thereof be on a party-to-party basis, to be summarily assessed, and that there be no order for the costs of and incidental to this application.
5. I have since handed down directions for paper disposal of the Leave Summons. Pursuant to those directions, Mr Mariani has for the Applicant filed his submissions in support and reply (“A/Sub#1” and “A/Sub#2”), and Mr Martin Ho and Ms Bonnie Cheng have respectively for the Respondent and the Interveners filed their submissions in opposition (“R/Sub” and “I/Sub” respectively). I have read the submissions. I have read the authorities referred to me.
6. 3 Grounds are set out in the Draft NOA. I deal with them in turn.
7. Ground 1:
(a) The main paragraph of Ground 1 reads as follows:
The learned Judge erred in declining to conclude that Re Buckton [1907] 2 Ch. 406 category 2 applied to the costs of the Conversion Application such that the costs of all parties to the Conversion Application should have been paid out of the Trust Fund and not by the Applicant personally.
(b) I did in dismissing the Costs Application consider Re Buckton. I reiterate my relevant discussions in the Costs Decision, and in particular §§11(e) to (h) and 18(c) to (g) thereof;
(c) Concerning whether resisting the Conversion Application was for the benefit of the Trust, Mr Mariani submits at §4 of his A/Sub#1 that allowing the Conversion Application would increase the costs and delay adjudication of the Applicant’s substantive application;
(d) I agree with Ms Cheng that that submission is outright wrong. The Conversion Application was necessitated by the serious factual disputes raised. As I have observed at §26(w) of the Decision:
…focusing too much on the advantage on expedition which the originating summons process may give so as to push cases which are otherwise not suitable for that process will create in the long terms problems which ultimately would cause more loss and waste of time and resources …
(e) The Conversion Application was a discrete application. For the Applicant to focus unrealistically upon the theoretic benefit of the originating summons process and to resist the Conversion Application when the originating summons process is clearly not appropriate could not have been for the benefit of the Trust;
(f) At §7 of his A/Sub#1, Mr Mariani submits that it was inaccurate to characterize the application “as currently constituted” as hostile. In this regard, I repeat §18(d) to (g) of the Costs Decision, in which I considered the costs positions before and after the Applicant dropping certain of the plainly hostile parts of her claim. Mr Ho submits at §3.3 of R/Sub that “It is regrettable that the Applicant did not see fit to deal with this aspect of the Court’s reasoning at all, whether in the [Draft NOA] or in the accompanying written statement”. There is clear force in this submission;
(g) Mr Mariani submits that “whilst the taxonomy in Re Buckton does not constitute an inflexible rule, it is well-established at common law. The Court should not derogate from that general approach without good reason”. Assuming without accepting the validity of these submissions, I have set out in the Costs Application facts which in my view plainly justify the Costs Orders even if Re Buckton were applicable – see §§11(f) to (h) and 18(d) to (h);
(h) Ground 1 is not reasonably arguable, and has no reasonable prospect of success.
8. Ground 2:
(a) The main paragraph of Ground 2 reads as follows:
The Applicant should not, in any event, be personally liable for the costs of the Respondent because the Respondent has changed its position both vis-a-vis the substantive remedies sought by the Applicant and, importantly, the Conversion Application itself.
(b) I repeat §§26(o)-(r) of the Decision, and §18(b) of the Costs Decision;
(c) Ground 2 is not reasonably arguable, and has no reasonable prospect of success.
9. Ground 3:
(a) The main paragraph of Ground 3 reads as follows:
In the event that the Applicant were ordered to pay the costs of any party in the Conversion Application and the Costs Application, such costs should be assessed on a party to party and not on an indemnity basis because the Applicant's resistance to the Conversion Application, and by extension her decision to commence these proceedings under the Originating Summons process, was not unreasonable.
(b) I have considered at §13 of the Costs Decision the legal principles on awarding indemnity. I repeat them;
(c) In my view, and as explained in the Costs Decision, the Applicant’s resistance of the Conversion Application was clearly and plainly unreasonable;
(d) On the facts of the case, as set out and explained in the Costs Decision, the Costs Orders are plainly justified;
(e) Ground 3 is not reasonably arguable, and has no reasonable prospect of success.
10. I have considered Re Up Energy Development Group Ltd (in liquidation) [2023] HKCA 536 §8. For the reasons set out above, I am of the view that none of the grounds which the Applicant intends to rely upon has any reasonable prospect of success.
11. I refuse the Applicant leave to appeal, and dismiss the Leave Summons.
12. On Costs:
(a) Ms Cheng submits[3] that the present application is a continuation of the Applicant’s unreasonable and unjustified position;
(b) Mr Ho submits[4] that the Applicant has failed to engage with (1) the high threshold which she has to surmount to get leave, and (2) this Court’s actual reasoning in finding that her litigation behaviour was unreasonable. He submits hence that the Leave Summons should never have been issued;
(c) There are clear forces in those submissions;
(d) On the facts, I make a costs order nisi, absolute within 7 days, that the costs of the Respondent and Interveners of and occasioned by the Leave Summons be borne by the Applicant and be summarily assessed on an indemnity basis, with certificate for counsel for the avoidance of doubt for both the Interveners and Respondent, and be paid by the Applicant personally forthwith;
(e) If there is any application for variation of the nisi order, I will upon request or when necessary hand down further directions. If not, the Respondent and Interveners may within 14 days from the date hereof serve and lodge their Statements of Costs, the Applicant may within 7 days thereafter serve and lodge her Statements of Objections, and the Respondent and Interveners may within 7 days thereafter serve and lodge their replies. Subject to any further directions which this Court may make, the summary assessment will then be conducted on the papers.
| (Keith Yeung) | |
| Judge of the Court of First Instance High Court |
Written Submissions and Reply by Mr Stefano Mariani of LCP, for the Applicant
Written Submissions by Mr Martin Ho, instructed by Lo, Wong & Tsui, for the Respondent
Written Submissions by Ms Bonnie YK Cheng, instructed by Kennedys, for the 1st to 4th Interveners