GURDAS S CHOITHRAMANI v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

CACV 117/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 117 OF 2014

(ON APPEAL FROM HCA 2073 OF 2011)

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JUDGMENT

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Hon Yuen JA:

1. This is an application by Hongkong and Shanghai Banking Corporation Ltd (“HSBC”) the defendant in HCA2073/2011 and the respondent in the appeal therefrom (CACV117/2014) for security for costs of the appeal.

Background

2. Briefly, the background is as follows.  In the 1970's and 1980's, the plaintiff Mr Gurdas S Choithramani (“Mr Choithramani”) controlled a company called Esquire (Electronics) Ltd, which was the principal company in a group of companies.

3. Esquire’s principal banker was HSBC, although it also did business with other banks.  Mr Choithramani gave a personal guarantee and provided other security to HSBC to secure Esquire’s liabilities to HSBC.

4. In the early 1980's, Esquire was in financial difficulties.  It has been said that its difficulties were caused (at least partly) by HSBC reneging on a proposed purchase of Li Fung House, a property owned by Esquire, in 1982.  This property was later sold by Esquire in 1987, allegedly as a result of misrepresentations made by HSBC.

5. By reason of Esquire’s financial difficulties, in February 1984 it entered into a restructuring agreement with HSBC, acting on behalf of itself and as agent for other banks to which Esquire was indebted (“the 1984 RSA”).  Mr Choithramani was a party to the 1984 RSA. 

6. The 1984 RSA was extended from time to time.  In January 1988, the parties to this agreement, save for Bank of America, entered into a further restructuring agreement (“the 1988 RSA”).  Bank of America had assigned its rights to HSBC after the 1984 RSA and before the 1988 RSA. 

Esquire’s action

7. In 1994, Esquire sued HSBC in HCA11077/1994 for, amongst other things, economic duress (“Esquire’s action”). As Mr Choithramani was in control of Esquire, he was well aware of the action.  However he did not join the action as a party, nor did he commence separate proceedings himself.

8. However in January 1996 Esquire was wound-up. 

9. Subsequently in December 1996 Mr Choithramani was adjudicated bankrupt.  Accordingly any causes of action he might have thereupon became vested in his trustee in bankruptcy, the Official Receiver (“OR”).

10. In 1997, Esquire assigned its action to a company called Magic Score.  Mr Choithramani, whose bankruptcy order was discharged on 24 September 2003, gave evidence for Esquire at the trial of Esquire’s action in 2004.

11. In July 2005, Waung J gave judgment in favour of Esquire.

12. HSBC appealed in CACV312/2005.  In October 2006 the Court of Appeal allowed the appeal.  There was apparently no further appeal to the Court of Final Appeal.

Mr Choithramani’s action

13. Five years later in December 2011, Mr Choithramani issued a writ against HSBC in HCA2073/2011 (“Mr Choithramani’s action”).  The statement of claim is 54 pages long.  There were the following 13 headings relating to claims:

(1)  Misrepresentation of Esquire’s Property Debt

(2)  Misappropriation of Esquire Monies 

(3)  Wrongful Assignment of Bank of America Debt

(4)  Compromise of Termination Rights

(5)  Invalidity and Unenforceability of Security

(6)  Wrongful Sale of Gurdas Shares and Conversion of Proceeds

(7)  Wrongful Sale of Esquire Shares and Conversion of Proceeds

(8)  Wrongful Sale of Li Fung House

(9)  Fictitious Property Loans

(10)  Wrongful Procurement of Judgment (meaning the appellate judgment in the Esquire action) 

(11)  Wrongful Sale of Gurdas Properties

(12)  Breach of Implied Terms

(13)  Breach of Fiduciary Duty.

14.1.   On HSBC’s side, it is said that the statement of claim contains 9 alleged wrongs (see para. 28 of the skeleton submissions dated 14 April 2014).

14.2.   On Mr Choithramani’s side, it is said that the statement of claim contains 16 causes of action (see para. 4 of the skeleton submissions dated 24 April 2014).

14.3.   It is not necessary at this stage to consider whether there is any real difference in these analyses and if so, which one is correct.  The statement of claim is there for all to see.

15. One notable feature is that all the wrongs alleged in the statement of claim (with one exception) occurred before Esquire’s action and before Mr Choithramani’s bankruptcy order.  It is well-established law that a right of action is a chose in action and therefore it is property that is vested in a bankrupt’s trustee in bankruptcy when a bankruptcy order is made.  When a bankruptcy order is discharged, the bankrupt is released from his debts but that does not mean that property that has been vested in the trustee in bankruptcy reverts to him.  The trustee in bankruptcy remains under a duty to administer the estate, and to realize any realizable assets for the benefit of the creditors.  Of course it is open to the trustee in bankruptcy at any time to assign the chose in action to anyone, or to consent to the bankrupt prosecuting the action, so long as that is in the best interests of the estate.

16. As noted above, all the wrongs alleged in the statement of claim occurred before the bankruptcy order.  The single exception is the allegation of “wrongful procurement of judgment” which allegedly occurred in 2006.  I shall return to this point later in this judgment.

Application to strike out

17. In July 2012 HSBC issued a summons to strike out the statement of claim and to dismiss Mr Choithramani’s action.  HSBC relied on the following grounds:

(i) Mr Choithramani has no locus standi to bring the claims;

(ii) all the claims constituted an abuse of process;

(iii) all (but one) of the claims are time-barred;

(iv) most of the claims are barred by the rule against reflective loss.

18.1.   In relation to (i), HSBC’s submissions were found in Section E of its skeleton submissions dated 14 April 2014. 

18.2.   Section E1 (paras. 35-38) contained HSBC’s arguments that Mr Choithramani had no locus standi to pursue a claim in respect of the wrongful sale of Esquire’s shares, or a claim arising from misrepresentation leading to the sale of Li Fung House, or for “wrongful procurement of judgment” because these were wrongs allegedly done to Esquire, not Mr Choithramani.

18.3.   Section E2 (paras. 39-43) contained HSBC’s arguments that the rest of the rights of action remain vested in the OR, and the OR has neither assigned them to Mr Choithramani nor consented to his bringing this action.

19. On 14 April 2014 Mr Choithramani applied to adjourn the strike-out application (listed for hearing on 28 April 2014) so that he could take steps to procure the OR’s assignment or consent. This application was dismissed by Au-Yeung J on 16 April 2014.

Deputy Judge Whitehead’s ruling on the adjournment application

20. Mr Choithramani’s renewed adjournment application was heard by Deputy Judge Whitehead on 28 April 2014, before the hearing of the strike-out application.  It is clear from the transcript of the ruling that the judge refused the adjournment application on the ground of delay.

Deputy Judge Whitehead’s ruling on the strike-out application

21. The judge then proceeded to hear the strike-out application.  In his written Ruling, the judge said, in summary:

-  HSBC’s counsel asserted that as the causes of action pleaded in the Statement of Claim accrued before or upon Mr Choithramani’s bankruptcy, the only party who could prosecute the proceedings in respect of the purported causes of action is the OR (para. 3);

-  Mr Choithramani’s counsel (not Mr Christopher Young who appeared in this security for costs application) accepted that the analysis of HSBC’s counsel was correct.  The judge recorded that the court also accepted that this is the position, and as such the statement of claim is bound to be struck out on the basis that Mr Choithramani had no locus standi (para. 4);

-  that being the case, Mr Choithramani’s counsel submitted that the court had no jurisdiction to determine HSBC’s other heads of complaint, the court having no jurisdiction to make further findings or orders in respect of a party who has no locus standi in the proceedings (para. 5);

-  HSBC’s counsel maintained that although Mr Choithramani had no locus standi, the court could and should nevertheless hear and determine HSBC’s other complaints (para. 6);

-  the judge took the view that once it was finally determined that a plaintiff had no locus standi to bring or maintain proceedings, the court had no jurisdiction to determine the arguments advanced by the defendant (para. 7);

-  if the judge was wrong in that respect, and if he did have jurisdiction to deal with the matters, then as a matter of discretion he declined to do so (para. 8);

-  it might be the case that the OR might assign the proceedings or consent to Mr Choithramani bringing an action (para. 9);

-  if the OR did take the matter up, then HSBC could ventilate the same arguments at that later time, and hence it did not suffer any real prejudice in not having the matter disposed of now (para. 10);

-  HSBC’s submission was that there was no real likelihood of an assignment or consent from the OR, and Mr Choithramani’s submission was that there was only a prospect that that might occur (para. 11); 

-  the judge took the view that it was “at least unlikely” that the OR would take the matter further, and it was not justified to spend more court time adjudicating on issues which might never need to be decided for the case to be resolved (para. 12);

-  accordingly the judge ordered that the statement of claim be struck out on the basis that Mr Choithramani had no locus standi to pursue the action (para. 13).

22. The judge ordered the writ and the statement of claim to be struck out on the ground that Mr Choithramani had no locus standi to pursue the claims in the action, dismissed the action and ordered Mr Choithramani to pay costs assessed at $1.55m within 28 days.

Appeal

23. Mr Choithramani lodged a notice of appeal on 26 May 2014.  He sought orders that

-  the strike-out application be adjourned to enable Mr Choithramani to conduct negotiations with the OR for assignment or consent, and

-  “further or alternatively” that the strike-out application be remitted to the Court of First Instance for the court to determine whether each cause of action required the OR’s assignment or consent in order for Mr Choithramani to have locus standi to prosecute it.

24. On 26 November 2014 (the day before the hearing of the security for costs application), Mr Choithramani filed a summons for leave to amend the grounds of appeal as per an attached draft.  On 1 December 2014 HSBC indicated that it would consent to the application for amendment.  Consequently this judgment has been written on the basis that the grounds of appeal are those set out in the amended notice of appeal. 

Application for security for costs

25. Meanwhile, HSBC sought security for the costs of the appeal.  This was done initially in correspondence.  The upshot of it was that HSBC demanded $339,000,  which was not challenged by Mr Choithramani, but he was prepared only to “make best efforts” to provide it 7 days before the appeal listed for hearing on 14 January 2015.

26. On 30 September 2014 HSBC issued the present summons for security for costs requesting security in the sum of $455,000.

27.1.  The application was resisted by Mr Choithramani on the basis that he had “every chance of succeeding” on his appeal.

27.2.  As far as his financial ability was concerned, Mr Choithramani has not paid the costs ordered by Deputy Judge Whitehead.  He applied for a stay of execution but this was rejected first by Deputy Judge Wilson Chan on 18 September 2014 and then by this court (Lam VP and Yuen JA) on 20 November 2014 in HCMP2607/2014.

27.3.  As for the quantum of security, Mr Young declined an invitation to challenge the items or sums charged, and indeed expressly accepted that the draft bill of costs was properly costed.  However as HSBC did not instruct counsel to appear at this application, there should be a deletion of Item 12 ($60,000 counsel’s brief fee for the present application) and a reduction of related items (which I have assessed at $12,000).  This results in a bill of $383,612.70.  

Principles

28. Turning now to the general principles governing security for costs of an appeal, it is clear that the court has a discretion to give, and would normally give, security for costs of an appeal where an appellant is impecunious, although the court may in some circumstances decline to order security notwithstanding the appellant’s impecuniosity where, for instance, it is "satisfied that the appeal raises real and substantial issues and that the appellant bears a sufficiently good chance of success to justify exposing the respondent to the injustice of having to bear his own costs even if he successfully resists the appeal" (Chan Sai Lun Henry v Chan Wai Wah, Lily-Ann CACV 143 & 205/1998). 

Discussion

29. It was necessary to set out the above matters in some detail in order to understand the arguments now advanced regarding Mr Choithramani’s chances on appeal, to which I shall now turn.  Of course at this stage, the court should only form a preliminary view as a detailed examination is neither required nor desirable (Chung Kau v Hong Kong Housing Authority [2004] 2 HKLRD 650). 

30. It has been suggested on Mr Choithramani’s behalf that the judge had misunderstood his counsel to have conceded that he had no locus standi in prosecuting the action as all the causes of action were vested in the OR.  It was submitted that that was wrong, because at least the “wrongful procurement of judgment” occurred after the discharge of bankruptcy.

31.1.  As far as HSBC’s skeleton submissions were concerned (referred to in para. 18 above) it is clear that the locus standi point had two aspects, one based on the contention that the wrongs were allegedly done to Esquire, not Mr Choithramani (Section E1, paras. 35-38) and the other, on the contention that the rest of the rights of action remain vested in the OR, and the OR has neither assigned them to Mr Choithramani nor consented to his bringing this action (Section E2, paras. 39-43).  “Wrongful procurement of judgment” was placed in Section E1 and therefore had nothing to do with the OR.

31.2.  As far as Mr Choithramani’s skeleton submissions were concerned, the two contentions were treated separately as well, para. 5 dealing with Section E2 and paras. 6 and 8 dealing with Section E1. 

32. No transcript of counsel’s submissions before Deputy Judge Whitehead having been produced in the present application, it is not known what was said orally by counsel at the hearing.  However the matters set out in para. 5 of the Ruling (see para. 21 above) appear to corroborate the judge’s view that there had been a concession by Mr Choithramani’s counsel that he had no locus standi to prosecute the action because all the causes of action were vested in the OR. 

33. Be that as it may, the more important question is, irrespective of the concession, whether in law the point conceded was right. 

34. As noted earlier, all the wrongs alleged in the statement of claim (bar one) had occurred before the bankruptcy order, and as such were rights of action that remain vested with the OR. 

35. That leaves only “wrongful procurement of judgment” which allegedly occurred in 2006, after the bankruptcy order had been discharged.  However Mr Choithramani was not a party to the Esquire action in which the judgment was procured, and the statement of claim failed to plead any connection between this alleged wrong to Esquire and any losses suffered by himself. 

35.1.  It is notable that in the section entitled “Losses suffered by Gurdas”, there is no reference at all to paras. 179-195, which are the parts in the statement of claim pleading the “wrongful procurement of judgment”.  Thus on the face of the statement of claim itself, no right of action has been disclosed entitling Mr Choithramani to claim. 

35.2.  In para. 8.17 of Mr Choithramani’s skeleton submissions before the judge, it was acknowledged that there was no “direct authority” on the proposition.  Nor did the rest of paras. 8.17 - 8.18 address the lacuna in the pleading.

35.3.  Further, Mr Choithramani’s skeleton submissions before me also did not address the lacuna, saying only that “in passing, it is worth noting that Reflective Loss is a complicated area, with exceptions to the general rule and recent conflicting authority.  There is much scope for argument”. 

35.4.  In other words, as the statement of claim itself failed to show a connection between Mr Choithramani and the alleged “wrongful procurement of judgment” in Esquire’s action, he had no locus standi regarding this cause of action either. Accordingly the point conceded was right (regardless of whether there had been a concession).

36. In conclusion Mr Choithramani has failed to persuade me at this stage that he has such high prospects of success on appeal from the judge’s order that I should decline to order security notwithstanding his financial difficulties.  I do not consider that the appeal raises such real and substantial issues, and that he bears such a sufficiently good chance of success, to justify exposing the respondent to the injustice of having to bear its own costs if it successfully resists the appeal.

Order

37. I would give an order in terms of the summons of 30 September 2014 save that in para. 1, the plaintiff is to have 21 days from the date of this judgment (ie by 24 December 2014) to furnish security in a sum rounded down to $383,000.  The costs of this application are to be paid by the plaintiff to the defendant to be taxed if not agreed.