RE HAWKINS DEVELOPMENT LTD

RE HAWKINS DEVELOPMENT LTD

There is a procedural lacuna because the new Order 62 rules 21-21C do not provide for interim payment of costs from security in non-interlocutory proceedings; the court may fill that lacuna by exercising its inherent jurisdiction when just and equitable and not inconsistent with the rules. On the facts (undisputed liabilities exceeded sums paid in, no appeal filed, provisional taxation directed) it was just and equitable to order the total amount paid into court with accrued interest to be paid out to the Company in part satisfaction of costs and to order the petitioner to pay the Company's costs of the application.

Citation
RE HAWKINS DEVELOPMENT LTD
Parties
Applicant: Hawkins Development Limited; Petitioner: Petitioner (company incorporated in British Virgin Islands)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 December 2009
Case Number
HCCW215/2007
Procedural Posture
Companies (winding Up) / Post Judgment Application for Payment Out of Security for Costs
Outcome
Summons allowed; payment ordered out of security for costs and costs awarded to Company
Legal Topics
Security for Costs, Taxation of Costs, Inherent Jurisdiction, Interim Payment of Costs
Source Language
EN
Civil Company Law Civil Procedure Costs Security for Costs Taxation of Costs Inherent Jurisdiction Interim Payment of Costs

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Parties

Hawkins Development Limited

Applicant

Petitioner (company incorporated in British Virgin Islands)

Petitioner

Procedural Posture

Companies (winding Up) / Post Judgment Application for Payment Out of Security for Costs

Legal Issues

  1. 1 Whether the court has inherent jurisdiction to order interim payment from security for costs in non-interlocutory proceedings
  2. 2 Whether there is a procedural lacuna in Order 62 rules 21-21C that permits exercise of inherent jurisdiction
  3. 3 Whether an order for payment out of sums paid into court would contravene the Rules of the High Court

Ratio Decidendi

There is a procedural lacuna because the new Order 62 rules 21-21C do not provide for interim payment of costs from security in non-interlocutory proceedings; the court may fill that lacuna by exercising its inherent jurisdiction when just and equitable and not inconsistent with the rules. On the facts (undisputed liabilities exceeded sums paid in, no appeal filed, provisional taxation directed) it was just and equitable to order the total amount paid into court with accrued interest to be paid out to the Company in part satisfaction of costs and to order the petitioner to pay the Company's costs of the application.

Court Disposition

Summons allowed; payment ordered out of security for costs and costs awarded to Company

Orders

  • The total amount paid into court by the petitioner as security for costs, with all accrued interest, be paid out to the Company in part satisfaction of the costs payable under the court's order dated 21 August 2009
  • The petitioner to pay the Company the costs of this application assessed on a gross sum basis at $27,000