KAEFER A.G. v. WINFIELD MARINE SERVICES CO., LTD

DCCJ 4320/2019

[2021] HKDC 1442

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4320 OF 2019

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DECISION

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A. INTRODUCTION

1.  This is an application taken out by the defendant (the intended appellant) by way of an inter parte summons filed on 25 June 2021 (“the Summons”) seeking for:-

(i)  leave to appeal against the Decision made by me on 31 May 2021 (“the Decision”) to the Court of Appeal on the grounds as set out in the draft notice of appeal annexed to the Summons and/or by virtue of other reason(s) in the interests of justice; and

(ii)  a stay of execution of the judgment entered against the defendant in the Decision pending the outcome of the substantive appeal.

B. BACKGROUND

2.  For the factual background of this case, I would refer to §§32 - 50 of my Decision.  I would not repeat them here.

3.  In the Decision, I had dismissed the defendant’s appeal against the Master’s decision on the security for costs summons and allowed the plaintiff’s application for summary judgment and ordered judgment be entered against the defendant in the sum of HK$785,889 (“the Sum”) together with interest and costs.

4.  The defendant now seeks leave to appeal against both of those decisions contained in the Decision to the Court of Appeal.

5.  On 5 August 2021, I directed this matter to be dealt with by way of paper disposal without an oral hearing.

6.  As a result, the defendant filed its written submissions on 19 August 2021 (“D’s Submissions”) and the plaintiff filed its written submissions on 2 September 2021 (P’s Submissions”).  The defendant filed its reply submissions on 9 September 2021 (D’s Reply Submissions”)     

C. DISCUSSION

C.1 Applicable principles

7.  The general principles applicable to leave application are not in dispute between the parties.  They are set out under D’s Submissions by Mr Kenny Lin and Mr Ken Cheng, the defendant’s counsel.  For the sake of completeness, I shall reproduce them here for the record.

8.  Pursuant to section 63A(2) of the District Court Ordinance, Cap 336 (“DCO”), if the Court is satisfied that either (1) the appeal has a reasonable prospect of success, or that (2) there is some other reason in the interests of justice for an appeal to be heard, then leave should be granted.

9.  In SMSE v KL [2009] 4 HKLRD 125, when considering a leave to appeal application (under section 14AA(4) of the High Court Ordinance, Cap 4, which bears identical wordings to section 63A of the DCO), Le Pichon JA held at §17 that:-

“…Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.”

10.  Obviously, the threshold for a reasonable prospect of success is less stringent than a real prospect of success as it only requires the intended appellant to show “a more than just arguable case” without the need to demonstrate that “the appeal will probably succeed”. (see Hong Kong Civil Procedure 2021, Vol II, §E1/14AA/5)

11.  The defendant further submits that even if an intended appellant fails to demonstrate a reasonable prospect of success on the proposed grounds of appeal, the Court may also grant leave if there are some other reason(s) in the interests of justice to do so. These reasons can be a case in which the Court should examine in light of public interest or a case that raises “an issue where the law requires clarifying”. (see Hong Kong Civil Procedure 2021, Vol II, §E1/14AA/6)

12.  Mr Toby Brown for the plaintiff (the intended respondent) adds the following to those general principles mentioned in the P’s Submission.  He states that, when considering whether an appeal has sufficient prospects of success, one must bear in mind that the Court of Appeal would not likely interfere with the lower court’s exercise of its discretion.  He submits that many of the defendants’ appeal grounds invite the Court of Appeal to do just that.  As a general observation, Mr Brown also states that the notice of appeal and D’s Submissions largely repeat the same arguments which were made at the first instance.  He alleges that there was no explanation or analysis of how the Court is said to have erred save for immaterial criticisms.  He further submits that this Court had rejected the defendant’s argument after careful consideration and a comprehensive judgment, with good reasons.  He submits that just because the defendant believes the Court should have preferred its case is not a basis for leave of appeal.

C.2 Summary of the grounds of the intended appeal

13.  The following is a summary of the grounds relied on by the defendant in the draft notice of appeal attached to the Summons:-

(a)  Summary Judgment

(i)  Ground 1.1: the Court’s refusal to consider the defence of bona fide purchase for value without notice [Decision/§§94-110];

(ii)  Ground 1.2: the introduction of “Ah Po” was to fit into the decision in Laerdal Medical Limited v Hong Kong Haocheng International Limited (unreported, HCA 2193/2016, 21 June 2017) [Decision/§§138-144];

(iii)  Grounds 1.3 & 1.4: the defendant could claim against Tangxin Trade Limited (“Tangxin”) for the fuels and had a right of recovery for the fuels against the 6 Mainland vessels [Decision/§§145-159];

(iv)  Grounds 1.5 & 1.6: there had been no change of position, and the defendant could not have changed its position in reliance of the payment from Tangxin whom it did not know previously [Decision /§§160-163];

(v)  Grounds 1.7 & 1.8: the defendant failed to plead the casual connection between the payment and the supply of fuels [Decision /§§164-168]; and

(vi)  Grounds 1.9 & 1.10: the defendant did not act in good faith as it had failed to make inquiry regarding the payment from Tangxin [Decision /§§169-176].

(b)  Security for Costs

(i)  Ground 2.1: there is a reciprocal enforcement procedure between Hong Kong and the Federal Republic of Germany under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (“FJREO”) and this alone was sufficient to discharge the plaintiff’s burden in refusing security for costs [Decision /§§69-82];

(ii)  Ground 2.2: the plaintiff had the equivalent of HK$131M in cash reserves in Germany [Decision /§§83-86]; and

(iii)  Ground 2.3: the plaintiff had very strong merits in its case while the defendant’s defence was not arguable or otherwise bound to fail [Decision /§67].

C.3 The parties’ submissions and findings of the Court

C.3.1 Summary Judgment

C.3.1.1 Ground 1.1

14.  Mr Lin submits that I should have considered the defence of bona fide purchase for value without notice which was open to the defendant to argue on the facts and/or evidence already placed before me.  He cited the cases of Kyocera Corporation v W. Haking Enterprises Ltd [2020] HKCA 817 at §§ 44.1 to 44.4; Tsang Wing Man v Chung On Ling (unreported, CACV 129/2015, 4 October 2016) at §53; Lo Yuk Sui v Fubon Bank [2020] HKCFA 6 at §9 and Lo Chiu Foon v Law Sui Ming (unreported, HCA 1010/2013, 24 October 2013) at §15 in support of his arguments that there was sufficient factual basis to support the pleadings. 

15.  He further submits that the material facts which have been pleaded in the defence also give rise to a defence of bona fide purchaser for value without notice.  In particular, he relies on §10(b) of the defence and also §13 of the 27.10 Affirmation/03.11 Affirmation in support of his argument.

16.  In any event, Mr Lin submits that, under O 14 r 4 of the Rules of the District Court, Cap 336H (“RDC”), a defendant may show cause by affidavit or otherwise.  In the premises, Mr Lin further submits that I should not have refused to consider a triable issue or an arguable defence simply because it was not pleaded.

17.  On the basis of the material facts pleaded and adduced by the defendant, Mr Lin submits that it was open to the defendant to argue and raise the defence of bona fide purchaser for value without notice and the defendant has plainly satisfied the requirement thereof.  It provided valuable consideration for the sum under valid agreements, namely, the refuelling of the said 6 vessels, and received the Sum in good faith without notice of the plaintiff’s right: see Goff & Jones the Law of Enrichment (9th ed) at §§29-04, 29-06 & 29-08.  It says, at the very least, this must be sufficient to raise a triable issue.

18.  I accept Mr Brown’s submission that the above arguments of the defendant has entirely ignored the fact that the defence of change of position and the defence of bona fide purchasers for value without notice are separate and distinct defences.

19.  These defences have different elements that are not interchangeable.  I agree that whilst the defendant points to the language in the defence that refers to acting in good faith and without notice, these elements were pleaded only within the change of position defence.  I further agree that the defendant’s pleading was not a general plea that it had acted in good faith and without notice (leaving open any question that arose from such facts), but it was pleaded in such a manner that supported the change of position defence only.  Therefore, even if one accepts in a vacuum the comment cited in D’s Submissions that “pleadings are not generally required to identify the legal questions that arise from the facts”, I agree that the defendant has specifically elected to identify that question by isolating those facts to give rise to a change of position defence only.

20.  Further, I agree that the defendant’s election to specifically inform the plaintiff of the defence it had to traverse; which the plaintiff did.  The plaintiff also made clear it was doing so to the exclusion of any defence of bona fide purchaser, because the defendant had not only not pleaded this defence but it had confirmed via the defendant’s junior counsel Mr Cheng (who appeared at the hearing on 23 June 2020) that it was not relying on this defence, despite having been given ample notice by the plaintiff that the plaintiff would hold the defendant to the fact that it was not running the bona fide purchaser defence.

21.  In any event, as Mr Brown has mentioned in P’s Submissions, the Court of Appeal’s comments on pleadings on which the defendant relies should not be read in a vacuum but must be read subject to the binding authority of the Court of Appeal.  The Court of Appeal has stated categorically and definitively the role of pleadings, and this has been helpfully reproduced at the beginning of O 18 of the RDC (§18/0/3 of Hong Kong Civil Procedure 2021) to remind practitioners to adhere to these requirements.  In summary, the Court of Appeal stated that the basic objective of pleadings is to fairly and precisely inform the other party of the pleading party’s case so that proper preparation is made possible.  That could not possibly include pleading a specific and distinct defence which is then traversed by the plaintiff and then relying on a new specific and distinct defence that has not been pleaded and hence not traversed by the plaintiff.  That would defeat the purpose of pleadings.

22.  Further, having not pleaded the bona fide purchaser defence, such that the plaintiff did not address it, I simply cannot see how the defendant can now claim that it would have succeeded on this point.

23.  As to the defendant’s argument that a defendant may show cause by affidavit, I agree with the plaintiff that this typically relates to a situation where the defendant is yet to file its defence, as is often the case in Order 14 applications.  However, once a defendant has elected to set out its case in pleaded form, that pleading defines the defendant’s case and the defendant cannot in my view borrow something he has pleaded under one issue to try to fit that into something that he has not pleaded.

24.  Lastly, I find the defendant has ignored the grounds on which I have rejected the defendant’s application to add the bona fide purchaser defence just prior to the commencement of the hearing on the last occasion.  I heard extensive arguments on this point and dealt with this issue comprehensively in the Decision. 17 paragraphs were devoted to this issue alone in the Decision: (See §§94 – 110 of the Decision).  I find D’s Submissions has very conveniently ignored those facts.  I consider they were case management decisions which I was entitled to make due to the very last minute attempt to introduce the bona fide purchaser defence.    

25.  Based on the aforesaid, I would reject Ground 1.1 of the defendant’s proposed grounds of appeal.

C.3.1.2 Ground 1.2

26.  In §§146 and 148 of the Decision, I found the following:-

“I agree that most likely it was due to the decision in Laerdal Medical Limited, supra (which was raised at the Security Summons), that D has sought to introduce Ah Po between D and the Vessels’ owners to create a convenient separation that arose only once D recognised that this argument was fatal to the defence.”

“In my view, it is very convenient for D to now make a bare assertion that Ah Po has purportedly claimed he “could no longer contact the payer.”

27.  The defendant submits that in so holding, I have effectively come to a view that the evidence relating to Ah Po was false and fictitiously raised by the defendant to cater for the decision in Laerdal Medical Limited.  

28.  Mr Lin submits that there was simply no evidence to support such a view taken by me.  He relies on a short passage of Ribeiro PJ in Ming Shiu Chung & Ors v Ming Shiu Sum & Ors [2006] 9 HKCFAR 334 at §45 as the authority to say why I was wrong.  Mr Lin submits that such a serious allegation against the defendant could and should not be made against the defendant in the absence of cross-examination and any solid evidential foundation.  The defendant submits that such a finding of serious misconduct tantamount to pure conjecture and when objectively assessed, one cannot conclude that I must have formed a biased view against the defendant.

29.  With greatest respect to Mr Lin, I cannot agree with his submissions at all.

30.  As Mr Brown has pointed out in P’s Submissions, the defendant has narrowly focused on a single comment which I made in the Decision on this proposed ground, despite the fact that I have conducted a lengthy examination of the role played by Ah Po, both as initially set out in sworn evidence and then as amended in the clear attempt to resile from that initial sworn evidence.

31.  I do not see why I was not entitled to reject the evidence provided by the defendant with regard to the role played by the fictitious Ah Po when those evidence are clearly not capable of believing.  I agree with Mr Brown that it is wrong, as the defendant claims, that whenever a Court rejects a party’s evidence that it then becomes an issue of fraud or misconduct, raising the standard of proof.  The issue here is that the defendant made a backflip on its evidence on a material issue which the defendant attempted to pass off as clerical errors.  As I found in the Decision, they were not mere typographical errors.  In my view, the deponent could not realistically have been mistaken as to the role played by various parties in its own business in a case that was being litigated and hence subject to thorough review by its many legal representatives.  In the circumstances, I consider I was perfectly entitled to come to those conclusions in the absence of a proper explanation from the defendant for the material change in its stance.

32.  Based on the above, I would also reject this proposed ground of appeal.

C.3.1.3 Grounds 1.3 & 1.4

33.  On the question of recovery of the Sum by the defendant, Mr Lin makes the following points under the following proposed grounds of appeal:-

(1)  As the defendant’s fuels were sold to the 6 Mainland vessels, there is no legal basis for the defendant to bring any action against Tangxin whom the defendant had no contractual relationship: [Decision/§148]; and

(2)  Further, Mr Lin submits that I should not have concluded that the defendant could have enforced its right of recovery in extraterritorial jurisdiction such as Mainland China [Decision/§150-154] without considering the issue of genuine and/or practical difficulty associated thereof which is plainly a fact-sensitive issue that can only be properly determined at trial: see Goff & Jones: The Law of Unjust Enrichment (9^th Ed) at §27-22).

34.  I agree with the plaintiff that the defendant is seeking to reverse the burden of proof here.  In my view, it is for the defendant to prove that it cannot make a recovery.  In this case, the defendant merely makes bare assertions that it is unable to recover from the vessels’ owners by simply raising the possibility of difficulties without any evidence that any of these difficulties are real rather than imagined.  I agree with Mr Brown that if there are extra-territorial issues with the recovery, then these are for the defendant to demonstrate.  The defendant cannot declare the recovery too hard after making no attempt whatsoever to make such a recovery.

35.  The only evidence given on this point by the defendant is that the vessels cannot be traced.  I have flatly rejected this contention in the Decision.  I agree with Mr Brown that once the defendant reinvented Ah Po as the agent of the vessels’ owners, the defendant must accept that Ah Po has all the relevant details of the owners and the vessels. Further, the defendant had not dealt with the fact that the vessels will feature in a register providing all relevant details.  It does not assist the defendant to claim that the issue of recovery is “fact sensitive” when it has adduced no facts to even create a factual issue. 

36.  Since I already dealt with this issue comprehensively in §§145- 159 of the Decision, I do not intend to repeat them here.  

37.  In short, I do not see how the defendant will be able to succeed in its appeal based on these 2 proposed grounds.

C.3.1.4 Grounds 1.5 & 1.6

38.  It was held by me in the Decision that there was no change of position for the defendant to provide the fuels to the 6 Mainland vessels because the defendant “merely changed one asset (fuel) for another (the chose in action to be paid)”: [Decision/§158].  The defendant submits that the change of the fuel into a chose in action must be a change of position in itself, and if a chose in action could be relied on as a quid pro quo for the goods and service rendered by a defendant or a change of form of asset to say that there was no change of position, then there could never be a defence of change of position.

39.  Further, the defendant submits that my reasoning of “no reduction in assets” has ignored the operation of the defence of anticipatory change of position as set out in Dextra Bank & Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193 which has been extensively applied in Hong Kong.

40.  Mr Lin contends that as I held in §118 of the Decision that the defence of “change of position” which the 3 questions posed for the Order 14A application revolving around were “fact sensitive” and they were not suitable for determination under Order 14A, he submits that I should also have held that the defences of change of position and anticipatory change of position are also fact sensitive and are not suitable for determination under Order 14.

41.  Further, Mr Lin submits that the defendant’s prior knowledge of the identity of Tangxin before the payment is not essential to the operation of the defence of change of position. He relies on a passage in Credit One Finance Ltd v Yeung Kwok Chi [2020] HKCFI 2450, where Mr Recorder Eugene Fung SC expressly held at §70(3) that reliance was not necessary in the formation of the defence of change of position.

42.  Hence, the defendant submits that I was wrong to reject the defendant’s defence of change of position for the alleged lack of reliance while the unchallenged evidence clearly demonstrates that but for the payment by Tangxin, the fuels would not have been supplied to those 6 Mainland vessels by the defendant.

43.  Again with respect to Mr Lin, I do not agree with his submissions.

44.  Mr Brown submits that at the heart of these grounds is a fundamental misunderstanding of the change of position defence.  The defendant argues that if the creation of a corresponding chose in action is sufficient to defeat the change of position defence, then there would be no such defence.

45.  Mr Brown further submits that in fact, because the creation of corresponding chose in action defeats the change of position defence, it only arises in rare situations.  In Seridom Servicios Integrados Idom S.A. U. v Heng Wen Trade Co., Limited & Ors [2019] HKCFI 85, Madam Justice Marlene Ng cited the leading case on change of position Lipkin Gorman with approval (at §75) as follows:-

“the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full. I wish to stress [however] that the mere fact that the defendant has spent the money, in whole or in part, does not of itself render it inequitable that he should [be] called upon to pay, because the expenditure might in any event had been incurred by him in the ordinary course of things. I fear that the mistaken assumption that mere expenditure of money may be regarded as amounting to a change of position for present purposes has led in the past to opposition by some to recognition of a defence which in fact is likely to be available only on comparatively rare occasions. (emphasis added)”

46.  The example given by Lord Templeman in Lipkin Gorman of a change of position is where the defendant used the funds to take a trip around the world that he would not have otherwise taken but for having received the claimed funds.  The defendant in that example has no asset to show for the expenditure of the funds and no chose in action.  In that case, he has changed his position in that there is no asset that has replaced the funds.  If, for example, a defendant purchased a car with the funds, then his position is not changed.  He could sell the car and would be in the same position as he was before he received the funds.  If that car is destroyed and the defendant has a claim for the value of the car against an insurer, then his position is still unchanged as he is back at his original position on payment by the insurer.

47.   Mr Brown submits that, if the defendant’s submission was correct, merely placing the funds in a bank account (which creates a chose in actionagainst the bank) would constitute a change of position because the defendant no longer holds the money but has a right of action against the bank, no Court would consider that to be a change of position.

48.  As to the “anticipation” issue, Mr Brown submits that the defendant cannot maintain that it did not know the identity of the payer and at the same time maintain that it anticipated the payment from that unknown payer.  

49.  I entirely agree with the plaintiff’s submissions above and find that grounds 1.5 & 1.6 are also unarguable.

C.3.1.5 Grounds 1.7 & 1.8

50.  The defendant submits that for the reasons set out under Ground 1.1 of D’s Submissions, I should not have rejected the defence of change of position simply because the “causal connection” between the supply of fuels and the payment by Tangxin was not specifically pleaded.  In any event, the defendant says that all the material facts establishing the causal connection between the supply of fuels and the payment by Tangxin, have been sufficiently pleaded and raised.

51.  I have no hesitation to reject the defendant’s proposed appeal based on these grounds as it is clear that the defendant was fully aware what was required of it if it wished to plead the change of position defence and what it had failed to do so.  In my view, the defendant was well aware of these failings as a result of the Master’s decision.  I agree with the plaintiff that the defendant’s failure to plead the causal connection is not a fact-sensitive issue.

C.3.1.6 Grounds 1.9 & 1.10

52.  The defendant also submits that my holding of lack of good faith on the part of the defendant cannot be supported by the evidence and is not an issue that can be determined in an Order 14 application.

53.  It is for the defendant to establish that it acted in good faith.  The defendant’s argument is that whether the defendant acted commercially is a fact sensitive issue.  However, the undisputed facts in this case are that the defendant accepted payments from an unknown third party for various different vessels when the defendant did not know the identity of the vessels’ owners (and that it does so regularly).  Those facts in my view are sufficient to show lack of good faith on the part of the defendant.  If there are other facts that are relevant, then they are known only to the defendant and the defendant has failed to bring them into evidence.

C.3.1.7 Conclusion on the defendant’s proposed appeal

54.  Based on the above discussions, I do not find the defendant has satisfied the threshold for a reasonable prospect of success under the above grounds of appeal on the summary judgment. I would therefore refuse to grant leave to the defendant to appeal against the Decision to the Court of Appeal.

C.3.2 Security for Costs

C.3.2.1 Ground 2.3

55.  The defendant submits that if the defendant is able to show an arguable defence and it cannot therefore be said that the plaintiff has demonstrated a high probability of success.  Therefore, if I find in favour of any of the defendant’s proposed grounds of appeal, then merits should not be further explored in the context of security for costs application as the plaintiff cannot rely on the merits to resist the security for costs application.

56.  Since I found the defendant’s defence was unarguable, the security for costs application in my view would fail on this ground alone.

C.3.2.2 Ground 2.1

57.  On the issue concerning enforcement difficulties, the defendant says that I was wrong in placing excessive reliance on the existence of the reciprocal enforcement procedure under the FJREO to conclude that the plaintiff had successfully discharged its burden under Order 23 application.  Mr Lin invites me to take the following into consideration:-

(1)  It has been made abundantly clear in Jollymex NV v Jollybaby International Ltd (unreported, HCA 828/2006, 28 March 2007) at §22 that such a reciprocal enforcement regime alone is not enough to refuse security as the evidential burden of showing that a local defendant would encounter no, or little, difficulty in enforcing a Hong Kong judgment abroad would not be discharged merely by pointing to the existence of such a procedure;

(2)  Further, such evidential burden is clearly not discharged by the plaintiff given the following actual difficulties particularly faced by the defendant when compared to the defendant in Lim Yi Shenn v Wong Yuen Yee [2012] 3 HKLRD 505 at §65:-

(i)  Germany is not a commonwealth country and thus it is listed in Schedule 2 of FJREO (while Singapore in Lim Yi Shenn is listed in Schedule 1);

(ii)  Germany is not an English speaking country, and there is going to be difficulties in communicating with German lawyers instructed to pursue enforcement of any possible costs orders in that jurisdiction (while Singapore in Lim Yi Shenn is an English speaking country); and

(iii)  Germany runs a civil law system and any enforcement there would have to be taken in a country with a legal system that is wholly foreign to the defendant (while Singapore in Lim Yi Shenn runs a common law system); and

(3)  The Court of First Instance in Lim Yi Shenn held at §64 that such a reciprocal enforcement regime is enough in discharging the evidential burden under Order 23 merely because the legal system in Singapore shares a lot of similarities to those in Hong Kong while Germany is a wholly different non-English speaking legal system from Hong Kong and therefore should not be approached in the same way, otherwise it would mean all the countries listed in FJREO, be it Schedule 1 or Schedule 2, would effectively be immune from an application under Order 23.

58.  I agree with Mr Brown that the defendant had the burden of showing that it was just and reasonable to order security in this case.  With the plaintiff having raised the FJREO, it was for the defendant to show that there were real difficulties with enforcement in Germany.  In my view, it is not sufficient for the defendant to merely state that Germany is a civil jurisdiction and not English speaking (which are obvious).  The defendant has to demonstrate by evidence that these 2 factors would make the overall process of registration more difficult. Otherwise, no litigant will able to enforce a judgment in a non-English speaking civil law country.   With English being widely used and spoken in Germany (particularly in the business and professional context), I simply cannot see why these factors would create any difficulties in the enforcement. 

59.  I further agree with Mr Brown that the defendant’s argument above has been misconceived.  I do not think the plaintiff is saying that just because it is a company from a country listed in the FJREO, it is automatically immune from an Order 23 application.  A defendant can put in evidence on the enforcement process in any country whether or not listed in the FJREO.  If the defendant provides admissible evidence of real difficulties with the enforcement process beyond what would be experienced in Hong Kong, then the defendant would have discharged its burden (subject to counter evidence from the plaintiff).  

60.  In this case, the defendant simply did not engage in this process.

C.3.2.3 Ground 2.2

61.  Under this ground, the defendant submits that I should not have refused the application for security for costs by reason of the alleged cash reserve held by the plaintiff in Germany based on the following reasons:-

(1)  The alleged audited account of the plaintiff for the financial year ended 31 December 2018 was prepared wholly in German without any translation;

(2)  The only comprehensible evidence concerning the plaintiff’s assets is no more than the assertion of the overseas cash reserves which I had accepted at its face value for no apparent reason, particularly when the plaintiff chose not to provide any properly translated financial document;

(3)  Further, those overseas assets were merely cash reserve which is insufficient alone to resist the Order 23 application (per Registrar Lung in Eric Edward Hotung & Another v Ho Yuen Ki & Others (unreported, HCA 857/2011, 13 December 2013) at §27);

(4)  Moreover, I had failed to appreciate that Coleman J in Zadeh v Registrar of Companies [2019] 5 HKLRD 355 found the plaintiff’s overseas business and assets were relevant and militating against the award of security [Decision/§85] merely because of the special circumstances of that case which are lacking in the present case.  For example:-

(i)  The plaintiff there had a profound history in meeting its legal obligation (Zadeh at §42); and

(ii)  The plaintiff therein had provided comprehensible accounting materials which the Court could form its independent analysis (Zadeh at §43).

62.  With respect to Mr Lin, I think it is only fair to say that the plaintiff’s overseas cash was merely one of the factors I have taken into account when considering whether to order security for costs in this case.  It was not the main factor.  Like in all applications for security for costs from overseas plaintiffs, the Court has to balance all the circumstances of the case before coming to a final decision.  In this case, the fact that the defendant’s merits were very weak and that it has failed to discharge its obligations with regard to the FJREO were sufficient for me to reject the security for costs application. The plaintiff’s relatively strong financial position was only one of the factors I have taken into consideration. 

63.  I also do not see why the account statement was in German should be a factor for me to reject the plaintiff’s evidence of its financial position.    After all, it was one of the small pieces of jigsaw puzzles which have helped me to build the big picture. And, in my judgment, the overall picture is undoubtingly that the defendant has a very weak case and the defence it put up is not believable. 

64.  In the aforestated premises, I have no hesitation to reject the defendant’s application for leave to appeal in respect of the Decision concerning the defendant’s appeal from the Master’s decision on the security for costs issue.

C.4 Other Reason in the interests of justice

65.  In the Decision, I found the defendant’s lack of reliance and/or anticipation of the payment by Tangxin after the fuels were supplied to the 6 Mainland vessels was fatal to the operation of the defence of the change of position: [Decision/§160-163].

66.  The defendant says that this is contrary to the observations made by the Court of First Instance in the case of Credit One Finance Ltd, supra.  The Court in Credit One Finance Ltd even held at §70(5) that the Court of Appeal would not have insisted on reliance as a necessary condition for the defence of change of position when it considered the case of Hua Rong Finance Ltd v Mega Capital Enterprises Ltd [2001] 3 HKLRD 623 (CA):-

“(5) ...Although the point about the necessity of reliance was not argued in that case, in the light of the conclusion it made, it is conceivable that the Court of Appeal would not have insisted on having reliance as a necessary condition to the operation of the change of position defence if it had to decide on the point.” (emphasis added)

67.  Hence, according to the defendant, it is abundantly clear that in light of those observations, the issue concerning the element of reliance in the operation of the change of position defence alone should warrant a clarification by the Court of Appeal.

68.  As I did not decide the Order 14 application on the reliance/anticipation point alone, leave on this basis in my view is pointless as it would not change the outcome of the application. It will only become an academic appeal.

69.  In the circumstances, I do not find there is any other reason in the interests of justice why I should grant leave to the defendant to appeal against the Judgment. 

C.5 Defendant’s stay of execution application

70.  The legal principles concerning a stay of execution pending appeal is succinctly summarised in Toeca National Resources BV v Baron Capital Ltd [2013] 5 HKLRD 178 (CA) by Cheung JA at §6.

71.  Mr Lin submits that based on matters stated in the D’s Submissions, the defendant has strong grounds of appeal and this should constitute a good reason for the grant of a stay of execution.

72.  Further, he submits that if leave of appeal is to be granted by this Court, there is nothing to show that a stay of execution would cause any prejudice to the plaintiff.

73.  As I have found against the defendant on all the proposed grounds raised by it in D’s Submissions, I do not consider that stay of execution should be granted. 

74.  Mr Lin further submits that even if stay of execution is refused, the defendant would have to pay the judgment sum to the plaintiff who is a foreign plaintiff having no assets and/or connections in Hong Kong before the conclusion of the substantive appeal, and there is therefore a risk of the defendant having difficulty to recover the sum from the plaintiff if the appeal turns out to be successful and rendering the appeal nugatory.

75.  Mr Lin cited the recent judgment by the Court of Appeal in Asparouh lanev Dimitrov as administrator of the estate of Kaloian lanev Dimitrov (Deceased) v Dominic Tak Ming Lau also known as Lau Tak Ming [2021] HKCA 1196, in granting a stay of execution, Au JA had this to say at §29(2) as follows:-

“(2) That the appeal will be rendered nugatory is further underlined by the fact that the plaintiff is a foreign resident in UK and is the administrator of the estate. This is so as once the Property is sold, the proceeds would be received by the plaintiff, who in the natural course of events, will most likely proceed to distribute it to the beneficiaries, whose identities are unknown and who are also likely be outside this jurisdiction. This would make it very difficult, if not impossible, for the 2^nd defendant to recover the proceeds even if she is eventually successful in her summons and in opposing the OS.” (emphasis added)

76.  Mr Lin submits that if this Court is prepared to grant a leave to appeal and a stay of execution of the Decision, they should also be granted pending the outcome of the substantive appeal.

77.  Of course, the major problem of the defendant’s application for stay of execution is that I find its intended appeal is lack of merits and does not pass the threshold of reasonable prospects of success based on the proposed grounds of appeal. 

78.  In the circumstances, I do not see why the plaintiff should be deprived of the fruits of the Decision by allowing a stay of execution.

79.  I therefore would reject the defendant’s application for a stay of execution.

D. CONCLUSION

80.  In conclusion, I would dismiss the Summons.

81.  Costs will follow the event.  The defendant having failed to obtain leave to appeal against the Decision and getting a stay of execution will have to pay the costs of the plaintiff in this applications.  Such costs will be taxed on a party and party basis at the District Court scale with certificate for counsel.  I shall make the costs order on a nisi basis and in the absence of any application from the parties to vary the same within 14 days, the costs order nisi will become absolute.

82.  It remains for me to thank counsel on both sides for their helpful written submissions.