EVER GOOD TRADING CORPORATION v. CHENG CHING KWOK t/a BONANZA INDUSTRY CO AND OTHERS

EVER GOOD TRADING CORPORATION v. CHENG CHING KWOK t/a BONANZA INDUSTRY CO AND OTHERS

Rule 32(4) makes fixed garnishee costs prima facie but not mandatory; the court has a general discretion and where a garnishee's involvement is significant and proceedings are complicated by disclosure (here BNP's disclosure of an additional Australian dollar account and related security), the prima facie fixed...

Source-derived case information.

Citation
EVER GOOD TRADING CORPORATION v. CHENG CHING KWOK t/a BONANZA INDUSTRY CO AND OTHERS
Parties
Plaintiff / Judgment Creditor: EVER GOOD TRADING CORPORATION; Judgment Debtor: CHENG CHING KWOK trading as BONANZA INDUSTRY COMPANY; 1st Garnishee: HANG SENG BANK LIMITED; 2nd Garnishee: BANQUE NATIONALE DE PARIS; 3rd Garnishee: HONG KONG & SHANGHAI BANKING CORPORATION; 4th Garnishee: SIN HUA TRUST SAVINGS & COMMERCIAL BANK
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 September 1987
Case Number
HCA5205/1986
Procedural Posture
Garnishee Proceedings / Costs Appeal / Appeal From Master's Costs Order (rehearing in Chambers)
Outcome
Appeal upheld in part; Master's fixed costs order set aside as to adequacy and replaced by an order awarding costs to 2nd garnishee
Legal Topics
Garnishee Proceedings, Fixed Costs Vs Scale Costs, Party and Party Costs, Common Fund Costs, Indemnity/solicitor and Own Client Costs, Third Party Disclosure, Order Nisi, Mareva Injunction Analogy
Source Language
en
Civil Procedure Costs Banking Law Enforcement / Execution Garnishee Proceedings Fixed Costs Vs Scale Costs Party and Party Costs Common Fund Costs +4 more

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Parties

EVER GOOD TRADING CORPORATION

Plaintiff / Judgment Creditor

CHENG CHING KWOK trading as BONANZA INDUSTRY COMPANY

Judgment Debtor

HANG SENG BANK LIMITED

1st Garnishee

BANQUE NATIONALE DE PARIS

2nd Garnishee

HONG KONG & SHANGHAI BANKING CORPORATION

3rd Garnishee

SIN HUA TRUST SAVINGS & COMMERCIAL BANK

4th Garnishee

Procedural Posture

Garnishee Proceedings / Costs Appeal / Appeal From Master's Costs Order (rehearing in Chambers)

Legal Issues

  1. 1 Whether Second Schedule fixed garnishee costs are mandatory or discretionary
  2. 2 Whether court has power to award costs on party and party, common fund or indemnity basis in garnishee proceedings
  3. 3 Whether an innocent bank garnishee which discloses additional accounts should be paid its costs by the judgment creditor

Ratio Decidendi

Rule 32(4) makes fixed garnishee costs prima facie but not mandatory; the court has a general discretion and where a garnishee's involvement is significant and proceedings are complicated by disclosure (here BNP's disclosure of an additional Australian dollar account and related security), the prima facie fixed costs are displaced and the court may award costs on a higher basis; on these facts the proper exercise of discretion required awarding BNP party and party costs to be paid by the judgment creditor.

Court Disposition

Appeal upheld in part; Master's fixed costs order set aside as to adequacy and replaced by an order awarding costs to 2nd garnishee

Orders

  • Judgment creditor (Ever Good Trading Corporation) to pay costs of the 2nd garnishee (Banque Nationale de Paris) on a party and party basis to be assessed in accordance with Order 62 Rule 28(2)
  • Banque Nationale de Paris is entitled to the costs of and occasioned by this appeal to be paid by the judgment creditor on a party and party basis, to be taxed if not agreed