ZHANG ZHATZEWAL AND ANOTHER v. SHANGHAI COMMERCIAL BANK LTD AND ANOTHER

ZHANG ZHATZEWAL AND ANOTHER v. SHANGHAI COMMERCIAL BANK LTD AND ANOTHER

Because the plaintiffs (Changs) were ordinarily resident outside Hong Kong, the counterclaims in HCA805/2009 and the claims in HCA1996/2009 were, in substance, independent cross-actions (not merely defences), the Changs failed to provide satisfactory evidence that security would stifle the claims or that they lacked means to pay, and enforcement of any costs order overseas would be difficult without security, it was just to order security for costs in the specific sums assessed (BEA: HKD3,000,000 in HCA805/2009 and HKD3,500,000 in HCA1996/2009; SCB: HKD3,000,000 in HCA1996/2009) and to stay proceedings until payment into court.

Citation
ZHANG ZHATZEWAL AND ANOTHER v. SHANGHAI COMMERCIAL BANK LTD AND ANOTHER
Parties
Plaintiff (hca805/2009); 1st Defendant (hca1996/2009): Shanghai Commercial Bank Limited; 1st Defendant (hca805/2009); 1st Plaintiff (counterclaim): Chang Yuan Ta Grant (Grant Chang); 2nd Defendant (hca805/2009); 2nd Plaintiff (counterclaim): Chang Ching Ho (CH Chang); 1st Plaintiff (hca1996/2009): Zhang Zhatzewal also known as Chang Chih Hwa, Clark (Clark Chang); 2nd Plaintiff (hca1996/2009): Chang Kung Da (KD Chang); 2nd Defendant (hca1996/2009); 2nd Defendant (by Counterclaim) (hca805/2009): The Bank of East Asia, Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 May 2011
Case Number
HCA1996/2009
Procedural Posture
Applications for Security for Costs Arising From Related Civil Banking Actions (hca805/2009 and Hca1996/2009) / Interim Hearing and Decision on Security for Costs (post Exchange of Witness Statements; Pre Trial); Decision Dated 17 May 2011
Outcome
Applications for security for costs granted in part against the overseas plaintiffs and counterclaimants.
Legal Topics
Security for Costs, Ordinary Residence, Counterclaim as Independent Action Vs Set Off/defence, Enforcement of Costs Orders, Stay of Proceedings
Source Language
EN
Civil Procedure Banking Law Tort (negligence) Contract (guarantee) Security for Costs Ordinary Residence Counterclaim as Independent Action Vs Set Off/defence Enforcement of Costs Orders +1 more

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Parties

Shanghai Commercial Bank Limited

Plaintiff (hca805/2009); 1st Defendant (hca1996/2009)

Chang Yuan Ta Grant (Grant Chang)

1st Defendant (hca805/2009); 1st Plaintiff (counterclaim)

Chang Ching Ho (CH Chang)

2nd Defendant (hca805/2009); 2nd Plaintiff (counterclaim)

Zhang Zhatzewal also known as Chang Chih Hwa, Clark (Clark Chang)

1st Plaintiff (hca1996/2009)

Chang Kung Da (KD Chang)

2nd Plaintiff (hca1996/2009)

The Bank of East Asia, Limited

2nd Defendant (hca1996/2009); 2nd Defendant (by Counterclaim) (hca805/2009)

Procedural Posture

Applications for Security for Costs Arising From Related Civil Banking Actions (hca805/2009 and Hca1996/2009) / Interim Hearing and Decision on Security for Costs (post Exchange of Witness Statements; Pre Trial); Decision Dated 17 May 2011

Legal Issues

  1. 1 Whether plaintiffs ordinarily resident outside jurisdiction should be ordered to give security for costs
  2. 2 Whether certain counterclaims are in substance defences or independent cross-actions
  3. 3 Whether ordering security would stifle the plaintiffs' claims or be unjust

Ratio Decidendi

Because the plaintiffs (Changs) were ordinarily resident outside Hong Kong, the counterclaims in HCA805/2009 and the claims in HCA1996/2009 were, in substance, independent cross-actions (not merely defences), the Changs failed to provide satisfactory evidence that security would stifle the claims or that they lacked means to pay, and enforcement of any costs order overseas would be difficult without security, it was just to order security for costs in the specific sums assessed (BEA: HKD3,000,000 in HCA805/2009 and HKD3,500,000 in HCA1996/2009; SCB: HKD3,000,000 in HCA1996/2009) and to stay proceedings until payment into court.

Court Disposition

Applications for security for costs granted in part against the overseas plaintiffs and counterclaimants.

Orders

  • In HCA805/2009 CH Chang to provide security for BEA\u2019s costs of HKD3000000 by payment into court on or before 31 May 2011; further proceedings against BEA by counterclaim by CH Chang stayed until security provided; liberty to apply.
  • In HCA1996/2009 Clark Chang and KD Chang to provide security for BEA\u2019s costs of HKD3500000 by payment into court on or before 31 May 2011; further proceedings against BEA stayed until security provided; liberty to apply.