NEW FRONT DEVELOPMENTS LTD v. ALPHA GIANT LTD

HCMP 120/2018

[2021] HKCFI 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 120 OF 2018

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D E C I S I O N

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1.  Arising from certain disputes between the plaintiff (“P”) and the defendant (“D”), P commenced HCMP 120/2018 (“HCMP 120”) and on 31 January 2018 obtained on an ex parte basis an injunction against D. On 9 February 2018, upon certain undertaking (the “Undertaking”) given by D, the injunction was discharged. By summons of 30 May 2018 (the “Variation Summons”), D sought an order that the terms of the Undertaking be varied, or alternatively for the provision of fortification by P.

2.  In the meantime, P took out 3 sets of proceedings (HCMP 597/2018, HCMP 600/2018 and HCMP 601/2018) for certain Norwich Pharmacal relief (the “NP Proceedings”) in aid of HCMP 120.  D subsequently on 25 May 2018 and 4 June 2018 took out applications and sought to be joined as defendant in each of those proceedings (the “Joinder Applications”).

3.  On 9 March 2020, the solicitors for both parties wrote in by way of a joint letter and informed the Court that D had been placed into liquidation in the Virgin Islands, and that the liquidators appointed had entered into an agreement with P in settlement of the action.  The terms of the settlement agreement had been reduced into a consent summons.  Parties sought an order in terms of the consent summons with a view to concluding the proceedings.

4.  This Court on 17 March 2020 sought clarifications from the parties as to whether parties had reached any consensus in respect of the NP Proceedings.  The parties had not. Recent correspondence with this Court suggest that the position has remained substantially the same.

5.  In the meantime, the consent order was on 18 March 2020 granted. Amongst others, parties agreed that there be no order as to costs in these proceedings notwithstanding any previous order.

6.  Upon the settlement of HCMP 120, and whatever the original merits (or otherwise) of the Variation Summons, it has been superseded by events, and has been rendered superfluous and entirely academic. 

7.  The same may be said about the Joinder Applications.

8.  Whilst the merits of the Variation Summons no longer call for adjudication, what the result should be is clear, that it should be dismissed given the intervening events and the settlement of HCMP 120.  In the circumstances, I make an order dismissing the Variation Summons.  Consistent with the terms of the consent order, I make a costs order nisi that there be no order as to costs.