XCHRX FOSHAN CITY COMMERCIAL BANK v. CHEN YONG YI AND OTHERS

HCA 15922/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15922 OF 1998

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D E C I S I O N

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1. The Plaintiff applied for and obtained an ex parte Mareva order on 2 February 1999. That order was discharged by me on 13 January 2000 with a fresh order granted in similar terms after a relatively lengthy inter partes hearing. I also ordered the Plaintiff to pay the costs forthwith.

2. Those costs were not paid by the Plaintiff after they were taxed. The Defendants applied for and obtained an 'unless' order on 9 January 2002 the relevant part of which reads:

"Unless by 4 pm. on 30 day of January 2002, the Plaintiff:

(1) gives security for the Defendants' costs in the sum of HK$8,039,786.00 by payment into Court or by bank guarantee to the Defendants' satisfaction or other modes of security as the parties may agree; and

(2) complies with the Costs Order of Mr Justice Chung made herein on the 17 day of April 2000 and pays the Defendants' costs of the Ex Parte Mareva Injunction Order of Madam Justice Beeson dated 2 February (as amended by the Order of Deputy Judge Lugar-Mawson dated 31 March 1999) and its discharged as taxed by Master Mary Yuen on 27 April 2001 in the sum of HK$740,690.00 together with the interest at judgment rate thereon from 27 April 2001 until payment.

this action be dismissed with costs, including the costs of and occasioned by the Summonses filed on 9 December 1998 and 31 May 2001 respectively, to be taxed and paid by the Plaintiff to the Defendants."

I pause to note that the Plaintiff did not oppose the application for an 'unless' order at the hearing of 9 January 2002.

3. The 'unless' order was not complied with. On 5 February 2002, an order was made dismissing this action with costs by reason of the Plaintiff's said default. Subsequently, on 6 February 2002, the Defendants took out the present application and asked inter alia (in paragraphs 1 and 2 thereof) for the Mareva order to be discharged and for the Plaintiff's cross-undertaking in damages to be enforced.

4. Plaintiff's solicitor filed an affirmation stating in short that insufficient time has been given to the Plaintiff to deal with the present application. They seek an adjournment of today's application so as to enable the Plaintiff to do so. With respect, I disagree that the Plaintiff has insufficient time to deal with the situation. It has to be borne in mind that the events which occurred since the making of the 'unless' order were 'automatic' in the sense that default in complying with the 'unless' order would (in accordance with the terms of that order) result in the dismissal of this action. Further, once the action is dismissed there will be nothing for the Mareva order to tack onto and it will therefore be discharged. In these circumstances, the Plaintiff should have complied with the 'unless' order or given a valid reason for any failure to do so.

5. It therefore does not lie in the Plaintiff's mouth to complain of insufficient time when, since at least 9 January 2002 (the date of the 'unless' order), the Plaintiff has chosen not to take any step in these proceedings, including applying for an extension of time to comply with the 'unless' order. Indeed, up to now no reason has been given by the Plaintiff as to why it has not complied with the 'unless' order, or as to why it has apparently been relatively dilatory in prosecuting this action. There is no application to set aside the order dated 5 February 2002 either. These comments are of course directed against the Plaintiff and not the Plaintiff's solicitors.

6. By reason of the above matters, I do not consider it appropriate to grant the adjournment sought and therefore refuse it.

[No further submissions were made by the Plaintiff in opposition to the application and an order was granted accordingly.]