SIMON FINLAYSON KIDD v. CHINA SAIL FACTORY LTD AND OTHERS

HCMP 3353/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3353 OF 1999

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D E C I S I O N

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1. I have before me a summons issued by three respondents herein, China Sail Factory Limited ("the Company"), John A Brodie and Athanasios Kondylis on 25 November 2002, seeking an order that the petitioner herein, Simon Finlayson Kidd, having failed to comply with the unless order I made on 4 October 2002 to furnish within seven days from the date of the order, the security of HK$300,000.00 either by payment into court or by way of a bank guarantee to be approved by a Master, this action be dismissed with costs to the respondents to be taxed if not agreed. The application was taken out under Order 23 Rule 1 of the Rules of the High Court and the inherent jurisdiction of the court.

2. The matter arose in this way.

3. On 8 June 1999, the petitioner presented a petition to wind-up the Company on just and equitable grounds. Alternatively, he sought relief under section 168A of the Companies Ordinance, Cap. 32 that his shares be purchased by the Company or by the remaining shareholders at a fair price. The petition was served on the Company and the two remaining shareholders and they are the respondents that I have mentioned.

4. On 29 June 1999, the respondents applied for an order that the petitioner do give security for their costs of this action, on the ground that the petitioner is and was not ordinarily resident in Hong Kong and he has no assets here.

5. On 23 September 1999, after hearing the parties, Cheung J (as he then was) made an order that the petitioner is to furnish within 21 days, the security of HK$300,000.00 either by payment into court or by way of a bank guarantee to be approved by a Master. The hearing date of the winding-up petition on 29 September 1999 was vacated and the proceedings were stayed. It was further ordered that if the petitioner would wish to restore the hearing of the petition, he is to furnish further security of HK$200,000.00 in the like manner.

6. The order to furnish security for costs was not complied with.

7. On 10 November 1999, the petitioner's solicitors obtained an order upon compliance with Order 67 Rule 6(1), they were to cease to act for the petitioner.

8. Nearly 3 years later, the respondents' solicitors served a Notice of intention to proceed on 11 June 2002 and on 2 September 2002, the respondents issued a summons for an unless order that unless the petitioner is to comply with the order of Cheung J and provide security within seven days of the order, this action is to be dismissed with costs to the respondents.

9. The summons came before me on 4 October 2002, I made an order as sought. That order was served on the petitioner at his last known address in Tuen Mun.

10. No security for costs has been furnished by the petitioner to date. As the petitioner has been given every opportunity to comply with the order to give security and he has not complied with the unless order made on 4 October 2002, I order that the action be dismissed with costs to the respondents to be taxed if not agreed.