CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. WU XIAODONG AND OTHERS

CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. WU XIAODONG AND OTHERS

The court dismissed the 2nd Defendant's summons seeking variation to obtain indemnity (or common fund) costs because the Plaintiffs' conduct did not exhibit special or unusual features warranting indemnity costs; the Plaintiffs committed a procedural irregularity in obtaining the ex parte injunction but there was no deliberate withholding of material nor were the Continuation Summonses entirely devoid of merit, and warning correspondence and delay alone did not justify indemnity costs. Costs consequences were apportioned: reserved costs of the Plaintiffs' Continuation Summonses were ordered to the 2nd Defendant (to be taxed and paid by the Plaintiffs) and a costs order nisi made in favour...

Citation
[2019] HKCFI 1809
Parties
1st Plaintiff (in Liquidation): China Medical Technologies, Inc.; 2nd Plaintiff: CMED Technologies Ltd; 3rd Plaintiffs (joint and Several Liquidators of China Medical Technologies, Inc.): Cosimo Borrelli & Yuen Lai Yee; 1st Defendant: Wu Xiaodong; 2nd Defendant (applicant): Samson Tsang Tak Yung; 3rd Defendant: Chen Zhong; 5th Defendant (formerly Trading as Kam Hing Trading Co): Chong Wing Hip; 13th Defendant (in Personal Capacity and as Trustee): Bi Xiao Qiong
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 July 2019
Case Number
HCA1417/2013
Procedural Posture
Civil (commercial) Proceedings: Injunctions, Continuation Summons and Costs Dispute / Ruling on Interlocutory Costs Variation Application
Outcome
Summons dismissed. Costs orders made as set out below.
Legal Topics
Ex Parte Injunction, Continuation Summons, Indemnity Costs, Common Fund Costs, Dissipation of Assets, Full and Frank Disclosure
Source Language
EN
Civil Procedure Costs Injunctions Equity Fraud Ex Parte Injunction Continuation Summons Indemnity Costs +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

China Medical Technologies, Inc.

1st Plaintiff (in Liquidation)

CMED Technologies Ltd

2nd Plaintiff

Cosimo Borrelli & Yuen Lai Yee

3rd Plaintiffs (joint and Several Liquidators of China Medical Technologies, Inc.)

Wu Xiaodong

1st Defendant

Samson Tsang Tak Yung

2nd Defendant (applicant)

Chen Zhong

3rd Defendant

Chong Wing Hip

5th Defendant (formerly Trading as Kam Hing Trading Co)

Bi Xiao Qiong

13th Defendant (in Personal Capacity and as Trustee)

Procedural Posture

Civil (commercial) Proceedings: Injunctions, Continuation Summons and Costs Dispute / Ruling on Interlocutory Costs Variation Application

Legal Issues

  1. 1 Whether the 2nd Defendant is entitled to indemnity costs or common fund costs for the Plaintiffs' Continuation Summonses and reserved costs
  2. 2 Whether the Plaintiffs' unjustified ex parte application and alleged non‑disclosure justify indemnity costs
  3. 3 Whether the Plaintiffs' Continuation Summonses were entirely devoid of merit or hopeless from the outset

Ratio Decidendi

The court dismissed the 2nd Defendant's summons seeking variation to obtain indemnity (or common fund) costs because the Plaintiffs' conduct did not exhibit special or unusual features warranting indemnity costs; the Plaintiffs committed a procedural irregularity in obtaining the ex parte injunction but there was no deliberate withholding of material nor were the Continuation Summonses entirely devoid of merit, and warning correspondence and delay alone did not justify indemnity costs. Costs consequences were apportioned: reserved costs of the Plaintiffs' Continuation Summonses were ordered to the 2nd Defendant (to be taxed and paid by the Plaintiffs) and a costs order nisi made in favour...

Court Disposition

Summons dismissed. Costs orders made as set out below.

Orders

  • Summons dated 4 June 2019 dismissed.
  • All costs of and occasioned by the Plaintiffs' Continuation Summonses previously reserved, if any, shall be to the 2nd Defendant, to be taxed if not agreed and paid by the Plaintiffs forthwith, with certificate for 1 counsel or 2 counsel as the case may be.