DANIEL ISAAC HENRI MIMOUN AND OTHERS v. DRAGON CONCEPT HK LTD AND OTHERS

DANIEL ISAAC HENRI MIMOUN AND OTHERS v. DRAGON CONCEPT HK LTD AND OTHERS

Security for costs was ordered because the petitioners were foreign or effectively foreign and the local corporate petitioner was a nominee of a foreign beneficial owner, the 2nd respondent adduced credible evidence (notably an unpaid allocatur exceeding HK$330,000 and over HK$400,000 with interest) meeting the threshold under s905 of the Companies Ordinance that the corporate petitioner may be unable to pay costs, and no discretionary factor (delay, provisional liquidator's report, monies paid into court) sufficiently rebutted the need for security; the court fixed security at HK$700,000 and awarded costs of HK$90,000 to the 2nd respondent.

Citation
DANIEL ISAAC HENRI MIMOUN AND OTHERS v. DRAGON CONCEPT HK LTD AND OTHERS
Parties
1st Petitioner: Beneficiaries of the estate of Daniel Isaac Henri Mimoun; 2nd Petitioner: Raphael Vittorio Mimoun; 3rd Petitioner: Excel Future Development Limited; 1st Respondent: Dragon Concept HK Limited; 2nd Respondent: NTS Limited; 3rd Respondent: Franck David Isaac Berrebi
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 July 2015
Case Number
HCCW434/2012
Procedural Posture
Winding Up Petition With Interlocutory Security for Costs Application / Interlocutory Application for Security for Costs (decision)
Outcome
Application for security for costs granted against the petitioners; separate application by the 3rd respondent dismissed for want of appearance
Legal Topics
Security for Costs, Winding Up (just and Equitable), Nominee Shares, Jurisdiction Under Companies Ordinance S905, Costs Assessment
Source Language
EN
Company Law Insolvency Law Civil Procedure Security for Costs Winding Up (just and Equitable) Nominee Shares Jurisdiction Under Companies Ordinance S905 Costs Assessment

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Parties

Beneficiaries of the estate of Daniel Isaac Henri Mimoun

1st Petitioner

Raphael Vittorio Mimoun

2nd Petitioner

Excel Future Development Limited

3rd Petitioner

Dragon Concept HK Limited

1st Respondent

NTS Limited

2nd Respondent

Franck David Isaac Berrebi

3rd Respondent

Procedural Posture

Winding Up Petition With Interlocutory Security for Costs Application / Interlocutory Application for Security for Costs (decision)

Legal Issues

  1. 1 Whether security for costs should be ordered against foreign petitioners
  2. 2 Whether s905 of the Companies Ordinance permits security against a corporate plaintiff likely unable to pay costs
  3. 3 Appropriate quantum of security and costs

Ratio Decidendi

Security for costs was ordered because the petitioners were foreign or effectively foreign and the local corporate petitioner was a nominee of a foreign beneficial owner, the 2nd respondent adduced credible evidence (notably an unpaid allocatur exceeding HK$330,000 and over HK$400,000 with interest) meeting the threshold under s905 of the Companies Ordinance that the corporate petitioner may be unable to pay costs, and no discretionary factor (delay, provisional liquidator's report, monies paid into court) sufficiently rebutted the need for security; the court fixed security at HK$700,000 and awarded costs of HK$90,000 to the 2nd respondent.

Court Disposition

Application for security for costs granted against the petitioners; separate application by the 3rd respondent dismissed for want of appearance

Orders

  • Petitioners ordered to give security for the 2nd respondent's costs in the sum of HK$700,000 up to and including exchange of witness statements
  • Costs of the security application assessed in favour of the 2nd respondent in the gross sum of HK$90,000