RE SEE WAH FAN

RE SEE WAH FAN

The application for indemnity costs was dismissed because although service of the statutory demand was invalid, there was no evidence the invalid service was a deliberate attempt to conceal bankruptcy proceedings or other misconduct by the Judgment Creditor; the Judgment Debtor still owed taxed costs, making the service attempt understandable, and therefore there was no basis for indemnity costs. Costs of the variation application were ordered to follow the event and fixed by gross assessment at HK$2,500.

Citation
RE SEE WAH FAN
Parties
Judgment Creditor: Judgment Creditor; Judgment Debtor: Judgment Debtor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 July 2011
Case Number
HCB8895/2010
Procedural Posture
Bankruptcy Petition / Ruling on Costs (application to Vary Costs Order Nisi)
Outcome
Application to vary the costs order nisi dismissed; costs of the variation application ordered against the Applicant
Legal Topics
Service of Statutory Demand, Costs on Indemnity Basis, Order Nisi, Gross Sum Assessment
Source Language
EN
Bankruptcy Civil Procedure Costs Service of Statutory Demand Costs on Indemnity Basis Order Nisi Gross Sum Assessment

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Parties

Judgment Creditor

Judgment Creditor

Judgment Debtor

Judgment Debtor

Procedural Posture

Bankruptcy Petition / Ruling on Costs (application to Vary Costs Order Nisi)

Legal Issues

  1. 1 Whether costs should be awarded on a full indemnity basis
  2. 2 Whether the invalid service amounted to deliberate concealment or other misconduct justifying indemnity costs
  3. 3 Appropriate assessment method for costs of the variation application

Ratio Decidendi

The application for indemnity costs was dismissed because although service of the statutory demand was invalid, there was no evidence the invalid service was a deliberate attempt to conceal bankruptcy proceedings or other misconduct by the Judgment Creditor; the Judgment Debtor still owed taxed costs, making the service attempt understandable, and therefore there was no basis for indemnity costs. Costs of the variation application were ordered to follow the event and fixed by gross assessment at HK$2,500.

Court Disposition

Application to vary the costs order nisi dismissed; costs of the variation application ordered against the Applicant

Orders

  • Application to vary the costs order nisi dismissed
  • Order nisi that the Judgment Debtor pay the Judgment Creditor costs of and incidental to the present application in the sum of HK$2,500 (gross)