SO SAU LAI CONNIE t/a WING FUNG TRADING CO v. DBS BANK (HONG KONG) LTD

SO SAU LAI CONNIE t/a WING FUNG TRADING CO v. DBS BANK (HONG KONG) LTD

The court held that DBS was entitled to its costs in HCMP1361/2005 to be taxed on an indemnity basis and that the surplus proceeds paid into court could be applied to satisfy DBS's eventual agreed or taxed costs because the mortgage charged the property to secure such costs; the mere filing of appeals or an application for legal aid did not stay execution in these proceedings and DBS's summonses were therefore granted (with a minor modification to paragraph 3) and costs of the summonses follow the event.

Citation
SO SAU LAI CONNIE t/a WING FUNG TRADING CO v. DBS BANK (HONG KONG) LTD
Parties
Plaintiff (hca2807/2004); 2nd Defendant (hcmp1361/2005): So Sau Lai Connie trading as Wing Fung Trading Company; Defendant (hca2807/2004); Plaintiff (hcmp1361/2005): DBS Bank (Hong Kong) Limited; 1st Defendant (hcmp1361/2005): New Harvest International Development Limited; 3rd Defendant (hcmp1361/2005): Hui Wing Sze
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 April 2017
Case Number
HCA2807/2004
Procedural Posture
Civil (banking/loan Enforcement; Mortgage; Guarantee) / Post Judgment Enforcement and Taxation Hearing (summons Hearing to Determine Costs and Distribution of Surplus Proceeds)
Outcome
Summonses granted in part in favour of DBS; DBS entitled to costs to be taxed on indemnity basis; surplus proceeds in court to be applied to DBS's agreed or taxed costs and any remaining balance paid to the mortgagor.
Legal Topics
Costs Taxation, Payment Into Court/surplus Proceeds, Stay of Execution on Appeal, Enforcement of Security, Indemnity Costs, Procedural Compliance With Court Directions
Source Language
EN
Civil Procedure Banking Law Contract Mortgage Law Guarantee Law Costs and Taxation Costs Taxation Payment Into Court/surplus Proceeds +4 more

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Parties

So Sau Lai Connie trading as Wing Fung Trading Company

Plaintiff (hca2807/2004); 2nd Defendant (hcmp1361/2005)

DBS Bank (Hong Kong) Limited

Defendant (hca2807/2004); Plaintiff (hcmp1361/2005)

New Harvest International Development Limited

1st Defendant (hcmp1361/2005)

Hui Wing Sze

3rd Defendant (hcmp1361/2005)

Procedural Posture

Civil (banking/loan Enforcement; Mortgage; Guarantee) / Post Judgment Enforcement and Taxation Hearing (summons Hearing to Determine Costs and Distribution of Surplus Proceeds)

Legal Issues

  1. 1 Whether the filing of an appeal or application for legal aid operated as a stay of execution of the judgment
  2. 2 Whether DBS was entitled to recover its costs from the surplus proceeds paid into court
  3. 3 Whether costs should be assessed on an indemnity basis and follow the event

Ratio Decidendi

The court held that DBS was entitled to its costs in HCMP1361/2005 to be taxed on an indemnity basis and that the surplus proceeds paid into court could be applied to satisfy DBS's eventual agreed or taxed costs because the mortgage charged the property to secure such costs; the mere filing of appeals or an application for legal aid did not stay execution in these proceedings and DBS's summonses were therefore granted (with a minor modification to paragraph 3) and costs of the summonses follow the event.

Court Disposition

Summonses granted in part in favour of DBS; DBS entitled to costs to be taxed on indemnity basis; surplus proceeds in court to be applied to DBS's agreed or taxed costs and any remaining balance paid to the mortgagor.

Orders

  • NH, So trading as Wing Fung and Hui shall pay DBS costs in HCMP1361/2005 (including costs of the Summonses and all costs reserved, if any) to be taxed if not agreed on an indemnity basis
  • The Surplus Proceeds shall be paid out to DBS solicitors in HCMP1361/2005 within 7 days after taxation or agreement on DBS costs in HCMP1361/2005 in satisfaction or partial satisfaction of such costs