XCHRX DRAGON CAPITAL PARTNERS L.P. v. MERRILL LYNCH CAPITAL SERVICES INC.

1994, MP No. 2827

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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D E C I S I O N

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1. This is an application which is made in an HCMP action which is No. 2827 of 1994. I doubt myself whether it should have been given an HCMP action but it has and so be it.

2. What happened was that on 7 October 1994 the plaintiff, represented by the plaintiff's solicitors, appeared in front of Mr. Justice Woo on an ex parte application. They had very properly given notice to the intended defendant and they had served papers on them giving them warning that they would be making the application and inviting them to attend.

3. As it transpired, and the judge's note so shows, the court, on reading the papers, discovered that the judge himself had been a client of the intended defendant. In view therefore of the embarrassment that the court found itself in it was necessary for the plaintiff to seek an appointment before another judge.

4. Again, as events unfolded, the plaintiff thought better of its application and it was never made. However an action has started and, although the endorsement on the draft writ was not quite the same as the prayer in the statement of claim which is endorsed on the writ in the High Court action, it is clearly the same set of facts and the same claims that are being made.

5. Before me today - and one can only comment on the speed with which this matter has come back before the court, over a year later - Mr. Harris now applies for costs of that aborted ex parte hearing.

6. It seems to me quite plain that the defendant or the intended defendant in what has been termed the miscellaneous proceedings but what I regard as the prelude to the main action is clearly entitled to its costs. In the normal way if a party makes an application to the court and, before the court decides on the matter, decides to withdraw that application, then of course the opposing party would be entitled to its costs. That, in effect, is no more than what has happened here.

7. My attention has been drawn to the decision of Megarry J. in Pickwick International Inc. Ltd. v. Multiple Sound Distributors Limited [1972] 1 WLR 1213, where the judge makes reference to what by then was becoming the practice of ex parte applications on notice.

8. The only factor which would lead me to consider not ordering costs is one which I raised with the plaintiff's solicitors and that is that it is of course to be encouraged, where possible, that even if an application is to be made ex parte, presumably because of its urgency, notice should, where it would not defeat the ends of justice, be given. Indeed, I have commented on this on many occasions. I hope that nothing which I do today will discourage the plaintiffs in the future and intended plaintiffs in the future from giving notice to intended defendants where that can be done.

9. Nevertheless, I feel that the only order I can make today is to give the intended defendants in the HCMP action costs of that application, which in effect, as I understand, was the only cost in that application.

10. Since separate proceedings have been opened - in my view wrongly but, nevertheless, they have been opened - there seems to me no reason why they should not be taxed in those HCMP proceedings and it would from the point of view of taxation no doubt be a cleaner matter and then the file can be finally closed.