GRANADEX SA v. BANGKOK BANK PUBLIC COMPANY LTD AND ANOTHER

HCCL 187/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 187 OF 1993

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D E C I S I O N

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1. I am prepared to grant the 1^st defendant’s application that the action be dismissed against the 1^st defendant for want of prosecution and that the 1^st defendant be at liberty to enter judgment for its costs of the action, including the costs of this application, to be paid by the plaintiff to the 1^st defendant and to be taxed on a party and party basis, if not agreed.

2. The decision is very easy to make in this case in which the plaintiff commenced its action as long ago as 21 July 1993, which, I think, would make that over 20 years ago. 

3. After the plaintiff paid into court the sum of HK$475,000 as security for costs in October 1997, the action then became dormant and remained dormant for some 16 years.  The plaintiff, in fact, was subject to liquidation proceedings in 2002 in Geneva and the recent correspondence with the liquidators for the plaintiff confirms that the liquidators do not intend to continue these proceedings and, as far as the security for costs is concerned, that they are content with the balance, if any, remaining of that security to be returned to them once the 1^st defendant’s costs have been dealt with.

4. In this case, it is clear that a period of delay is not only inordinate and inexcusable, but quite exceptional.  No reasons have been offered for this very, very substantial delay.

5. In addition, I am satisfied that serious prejudice has been caused to the 1^st defendant, a conclusion I have reached after reviewing the affidavit evidence that has been filed in support of this application.  The 2^nd defendant was dissolved in 2001 and that, of course, means that the possibility of contribution, or other recovery, from the 2^nd defendant is now lost if the 1^st defendant were to be found liable after trial.  In addition, the directors of the 2^nd defendant, who provided personal guarantees in favour of the 1^st defendant, have themselves passed away in 2006 and 2009 and those personal guarantees are, of course, now of no use to the 1^st defendant should it fail after trial.

6. The 1^st defendant has lost touch with and is unable to locate two key witnesses who would have been able testify to the matters that arise in this litigation.  These two key witnesses have left the employment of the 1^st defendant for some time.

7. There is, in fact, no opposition to this application and not only no opposition, but a clear statement from the liquidators of the plaintiff that it has no intention to continue with these proceedings.

8. In the circumstances, it is only right that the action be dismissed.