XCHRX SHUN KAI FINANCE CO. LTD. AND OTHERS v. JAPAN LEASING (HONG KONG) LTD. (IN CREDITORS' VOLUNTARY LIQUIDATION)

HCA 13826/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13826 OF 1998

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D E C I S I O N

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1. In a written judgment handed down on 8 February 2000, I allowed the 1st Plaintiff's appeal and made a cost order nisi that both the cost of the appeal and the cost of the hearing before the Master be to the 1st Plaintiff in any event. The Defendant later applies for a variation of that order nisi on the following grounds:-

(a) a different point was argued by the 1st Plaintiff at the hearing before the Master;

(b) the 1st Plaintiff insisted on obtaining an express undertaking from the Defendant which was not given by the Master.

2. The issue between the parties at the appeal hearing was in short whether the 1st Plaintiff's documents "disclosed" pursuant to Ord. 24 r. 10 should be subject to an undertaking (whether expressly given or implied by law) not to use them for other purposes than the litigation in question. Mr Ng for the Defendant considers that Mr Swaine for the 1st Plaintiff has at the hearing before the Master also advanced an argument denying the 1st Plaintiff's liability to make "disclosure". Mr Swaine, on the other hand, disagrees that he had done so. The disagreement between counsel resulted in the hearing being adjourned so that the official transcript relating to the Master's hearing can be obtained. The Defendant's solicitors have very helpfully obtained the transcript from the court after the said adjournment and the transcript is now before me.

3. Mr Ng refers me to pages 6O to 7J, 8T to 9E and 11H to 12O of the transcript in support of his said argument. However, I do not consider Mr Swaine was advancing a separate contention after I have read these passages in the context of his submissions made before the Master: see especially page 6O to P and page 7 N to R. I rather understand him to be arguing (as an alternative to his primary argument that an undertaking ought to be ordered or declared) that if the Defendant is insistent on not giving or agreeing to an undertaking, the court should simply refuse its application without giving the Defendant the option of a "disclosure" order upon terms.

4. As to the question of whether the 1st Plaintiff insisted on an express undertaking, having read the pre-hearing correspondence, the affirmation filed on behalf of the 1st Plaintiff and the official transcript, I do not find that the 1st Plaintiff had insisted on obtaining an express undertaking and would not accept anything else.

5. Even if Mr Swaine had advanced a different argument at pages 6 to 7 and 8 to 9 of the transcript, that point only took up about 3 pages of a transcript lasting for about 20 pages in total (up to the time when the Master pronounced his decision). I do not consider in these circumstances that a different costs order is warranted according to the principles set out in Re Elgindata (No. 2).

6. For the above reasons, I do not consider that the costs order nisi should be varied. In coming to this conclusion, I have taken into account the fact that what Mr Swaine said at pages 6 to 7 and 8 to 9 of the transcript had resulted in certain responses from both Mr Ng (at pages 11 to 12 thereof) and the Master (at page 19 thereof).