IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND ANOTHER

IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND ANOTHER

Leave to file the variation summons out of time was granted because there was no prejudice to the respondents and the substantive variation was raised within time and argued on the papers; however the variation summons was dismissed and indemnity costs were ordered because the applicants pursued an application that was untenable in law (lack of jurisdiction to order the affidavit) and had been put on notice by prior correspondence and authority, such conduct justified indemnity costs.

Citation
[2020] HKCFI 1621
Parties
Applicant Joint and Several Trustee in Bankruptcy: IP PUI LAM ARTHUR; Applicant Joint and Several Trustee in Bankruptcy: IP PUI SUM; Respondent Joint and Several Liquidator of Asia Pac Infrastructure Development Limited: ALAN CHUNG WAH TANG; Respondent Joint and Several Liquidator of Asia Pac Infrastructure Development Limited: HOU CHUNG MAN; Bankrupt: HO YUK WAH DAVID
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 July 2020
Case Number
HCB3819/2011
Procedural Posture
Bankruptcy Proceedings / Application to Vary Costs Order; Decision on Costs and Leave to File Out of Time
Outcome
Variation summons dismissed; retrospective leave to file out of time granted (filing dated 2 July 2020 to stand); costs to Liquidators on indemnity basis
Legal Topics
Indemnity Costs, Costs Assessment, Leave to File Out of Time, Discovery, Court Jurisdiction
Source Language
EN
Bankruptcy Insolvency Civil Procedure Costs Company Liquidation Indemnity Costs Costs Assessment Leave to File Out of Time Discovery +1 more

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Parties

IP PUI LAM ARTHUR

Applicant Joint and Several Trustee in Bankruptcy

IP PUI SUM

Applicant Joint and Several Trustee in Bankruptcy

ALAN CHUNG WAH TANG

Respondent Joint and Several Liquidator of Asia Pac Infrastructure Development Limited

HOU CHUNG MAN

Respondent Joint and Several Liquidator of Asia Pac Infrastructure Development Limited

HO YUK WAH DAVID

Bankrupt

Procedural Posture

Bankruptcy Proceedings / Application to Vary Costs Order; Decision on Costs and Leave to File Out of Time

Legal Issues

  1. 1 Whether retrospective leave should be granted to file the variation summons out of time
  2. 2 Whether the order nisi for costs on indemnity basis with certificate for one counsel was appropriate
  3. 3 Whether the court had jurisdiction to order the filing of a specific affidavit

Ratio Decidendi

Leave to file the variation summons out of time was granted because there was no prejudice to the respondents and the substantive variation was raised within time and argued on the papers; however the variation summons was dismissed and indemnity costs were ordered because the applicants pursued an application that was untenable in law (lack of jurisdiction to order the affidavit) and had been put on notice by prior correspondence and authority, such conduct justified indemnity costs.

Court Disposition

Variation summons dismissed; retrospective leave to file out of time granted (filing dated 2 July 2020 to stand); costs to Liquidators on indemnity basis

Orders

  • Leave granted to the Former Trustees to file the variation summons out of time; filing on 2 July 2020 to stand
  • Variation summons dismissed