FOSHAN NANHAI BRANCH OF INDUSTRIAL AND COMMERCIAL BANK OF CHINA LTD v. FOSHAN RUIFENG PETROLEUM AND CHEMICAL FUEL CO LTD AND OTHERS

FOSHAN NANHAI BRANCH OF INDUSTRIAL AND COMMERCIAL BANK OF CHINA LTD v. FOSHAN RUIFENG PETROLEUM AND CHEMICAL FUEL CO LTD AND OTHERS

The court exercised its discretion to vary the costs order nisi because the respondents' unsuccessful Challenge to the applicant's locus caused a significant increase in hearing time, preparation and delay; accordingly the respondents must pay 50% of the costs of the proceedings attributable to the Challenge, and the applicant's summons to vary the costs order nisi is allowed while the respondents' out-of-time variation summons is dismissed.

Citation
[2019] HKCFI 1875
Parties
Applicant: Applicant; Respondents: 4th & 9th Respondents
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 2019
Case Number
HCMP2378/2014
Procedural Posture
Application to Set Aside Registration of a Mainland Judgment; Variation of Costs Order Nisi / Post Decision Application to Vary Costs (summons of 28 March 2019); Respondents' Variation Summons Dismissed as Out of Time (28 May 2019)
Outcome
Applicant's summons of 28 March 2019 allowed; respondents' summons of 28 May 2019 dismissed as out of time; order nisi varied to apportion costs in favour of the Applicant in respect of the Challenge.
Legal Topics
Registration of Mainland Judgment, Costs Orders and Apportionment, Standing/locus to Sue, Penalty Interest, Variation of Order Nisi
Source Language
EN
Civil Procedure Judgments and Enforcement Costs Registration of Mainland Judgment Costs Orders and Apportionment Standing/locus to Sue Penalty Interest Variation of Order Nisi

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Parties

Applicant

Applicant

4th & 9th Respondents

Respondents

Procedural Posture

Application to Set Aside Registration of a Mainland Judgment; Variation of Costs Order Nisi / Post Decision Application to Vary Costs (summons of 28 March 2019); Respondents' Variation Summons Dismissed as Out of Time (28 May 2019)

Legal Issues

  1. 1 Whether the Mainland Judgment was registrable under the Ordinance
  2. 2 Whether the order for double interest constituted a penalty
  3. 3 Whether the Applicant had locus to commence and pursue the proceedings

Ratio Decidendi

The court exercised its discretion to vary the costs order nisi because the respondents' unsuccessful Challenge to the applicant's locus caused a significant increase in hearing time, preparation and delay; accordingly the respondents must pay 50% of the costs of the proceedings attributable to the Challenge, and the applicant's summons to vary the costs order nisi is allowed while the respondents' out-of-time variation summons is dismissed.

Court Disposition

Applicant's summons of 28 March 2019 allowed; respondents' summons of 28 May 2019 dismissed as out of time; order nisi varied to apportion costs in favour of the Applicant in respect of the Challenge.

Orders

  • Respondents to pay to the Applicant 50% of the costs of the Challenge (apportioned as 50% of the costs of these proceedings), including 50% of the costs of the hearing on 15 November 2018 and preparation for it
  • Include costs of the hearing on 12 December 2017 in the costs of the Challenge