BEIJING TRUST INVESTMENT CORPORATION OF THE PEOPLE\'S CONSTRUCTION BANK OF CHINA and OTHERS v. HO YING CHEONG and OTHERS

BEIJING TRUST INVESTMENT CORPORATION OF THE PEOPLE\'S CONSTRUCTION BANK OF CHINA and OTHERS v. HO YING CHEONG and OTHERS

Cumulative special features — obtaining and maintaining an ex parte Mareva injunction based on miscalculated restraint, concealment of material facts and source of funds, repeated defaults and delays, wilful non-compliance with discovery orders and suppression or misleading of evidence — constituted an abuse of process and an affront to the court; those facts justified departing from ordinary party-and-party costs and ordering costs on an indemnity basis against all plaintiffs; Susan Johnson's affirmations excluded as inadmissible hearsay when used to establish plaintiffs' motives.

Citation
BEIJING TRUST INVESTMENT CORPORATION OF THE PEOPLE\'S CONSTRUCTION BANK OF CHINA and OTHERS v. HO YING CHEONG and OTHERS
Parties
1st Plaintiff: IMAGE TECHNOLOGY (HONG KONG) LIMITED; 2nd Plaintiff: QINGYUAN REAL ESTATE DEVELOP GENERAL COMPANY; 3rd Plaintiff: PHOTO SUPPLY CORPORATION; 4th Plaintiff: QINGYUAN 3D PHOTOGRAPHIC TECHNOLOGY CORPORATION; 1st Plaintiff (beijing Action): THE BEIJING TRUST INVESTMENT CORPORATION OF THE PEOPLE S CONSTRUCTION BANK OF CHINA; 2nd Plaintiff (beijing Action): ZHONG MAN ELECTRONIC SYSTEM CORPORATION; 3rd Plaintiff (beijing Action): BEIJING SUNNY STEREOSCOPIC PHOTOGRAPHY TECHNOLOGY CO. LTD.; 1st Defendant: HO YING CHEONG; 2nd Defendant: HO CHING CHEONG INVESTMENT CO. LTD.; 3rd Defendant: HO CHING CHEONG INTERNATIONAL CO. LTD.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 February 1995
Case Number
HCA9302/1993
Procedural Posture
Civil Commercial Injunction and Discovery Proceedings / Judgment on Defendants' Application for Indemnity Costs
Outcome
Defendants' application for indemnity costs granted against all Plaintiffs in both actions; certain plaintiff affirmations excluded
Legal Topics
Indemnity Costs, Mareva Injunction, Abuse of Process, Non Disclosure of Documents, Suppression of Evidence, Security for Costs, Admissibility of Affidavits, Offers and Costs
Source Language
EN
Civil Procedure Costs Injunctions Disclosure and Discovery Commercial Litigation Evidence Law Indemnity Costs Mareva Injunction +6 more

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Parties

IMAGE TECHNOLOGY (HONG KONG) LIMITED

1st Plaintiff

QINGYUAN REAL ESTATE DEVELOP GENERAL COMPANY

2nd Plaintiff

PHOTO SUPPLY CORPORATION

3rd Plaintiff

QINGYUAN 3D PHOTOGRAPHIC TECHNOLOGY CORPORATION

4th Plaintiff

THE BEIJING TRUST INVESTMENT CORPORATION OF THE PEOPLE S CONSTRUCTION BANK OF CHINA

1st Plaintiff (beijing Action)

ZHONG MAN ELECTRONIC SYSTEM CORPORATION

2nd Plaintiff (beijing Action)

BEIJING SUNNY STEREOSCOPIC PHOTOGRAPHY TECHNOLOGY CO. LTD.

3rd Plaintiff (beijing Action)

HO YING CHEONG

1st Defendant

HO CHING CHEONG INVESTMENT CO. LTD.

2nd Defendant

HO CHING CHEONG INTERNATIONAL CO. LTD.

3rd Defendant

Procedural Posture

Civil Commercial Injunction and Discovery Proceedings / Judgment on Defendants' Application for Indemnity Costs

Legal Issues

  1. 1 Whether the defendants are entitled to indemnity costs against all plaintiffs in both actions
  2. 2 Whether certain solicitor affirmations (Susan Johnson) are admissible on the question of costs and motives
  3. 3 Whether plaintiffs' conduct amounted to an abuse of process or an affront to the court warranting indemnity costs

Ratio Decidendi

Cumulative special features — obtaining and maintaining an ex parte Mareva injunction based on miscalculated restraint, concealment of material facts and source of funds, repeated defaults and delays, wilful non-compliance with discovery orders and suppression or misleading of evidence — constituted an abuse of process and an affront to the court; those facts justified departing from ordinary party-and-party costs and ordering costs on an indemnity basis against all plaintiffs; Susan Johnson's affirmations excluded as inadmissible hearsay when used to establish plaintiffs' motives.

Court Disposition

Defendants' application for indemnity costs granted against all Plaintiffs in both actions; certain plaintiff affirmations excluded

Orders

  • Exclude the entirety of Miss Susan Johnson's affirmations from evidence for the purposes specified (affirmations struck out)
  • Award indemnity costs to the Defendants against all Plaintiffs in HCA Nos. A6861/1993 and A9302/1993