JENHO DEVELOPMENT LTD v. PENSONIC TECHNOLOGY (HK) LTD

JENHO DEVELOPMENT LTD v. PENSONIC TECHNOLOGY (HK) LTD

On the materials before the court, including consolidated group accounts showing losses and net liabilities and circumstantial evidence about the structure and finances of the group, the applicant established credible reason to believe Pensonic Technology would be unable to meet an adverse costs order; Pensonic Technology did not adduce adequate contrary documentary evidence; exercising the court's discretion in all circumstances (including excused delay and absence of strong prospect of success), the court ordered payment into court of HK$240,000 as security for costs and awarded the applicant HK$48,000 for costs of the application.

Citation
JENHO DEVELOPMENT LTD v. PENSONIC TECHNOLOGY (HK) LTD
Parties
Plaintiff: Jenho Development Ltd; Defendant: Pensonic Technology (HK) Limited; 1st Third Party: Tse Tung Hoi; 2nd Third Party: EXA Technology and Development Company Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 June 2012
Case Number
DCCJ4402/2009
Procedural Posture
Civil (district Court) Third Party Action / Pre Trial (application for Security for Costs)
Outcome
Security for costs ordered; third party action to continue; trial fixed for 30 July 2012; costs of the application awarded to the applicant.
Legal Topics
Security for Costs, Application Under Companies Ordinance S.357, Third Party Claim, Stay of Proceedings
Source Language
EN
Company Law Civil Procedure Costs Insolvency Security for Costs Application Under Companies Ordinance S.357 Third Party Claim Stay of Proceedings

Case Brief

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Parties

Jenho Development Ltd

Plaintiff

Pensonic Technology (HK) Limited

Defendant

Tse Tung Hoi

1st Third Party

EXA Technology and Development Company Limited

2nd Third Party

Procedural Posture

Civil (district Court) Third Party Action / Pre Trial (application for Security for Costs)

Legal Issues

  1. 1 Whether applicant adduced credible evidence that the defendant company will be unable to pay an adverse costs order
  2. 2 Whether the court should exercise its discretion to order security for costs despite delay and asserted merits
  3. 3 What form and quantum of security is appropriate

Ratio Decidendi

On the materials before the court, including consolidated group accounts showing losses and net liabilities and circumstantial evidence about the structure and finances of the group, the applicant established credible reason to believe Pensonic Technology would be unable to meet an adverse costs order; Pensonic Technology did not adduce adequate contrary documentary evidence; exercising the court's discretion in all circumstances (including excused delay and absence of strong prospect of success), the court ordered payment into court of HK$240,000 as security for costs and awarded the applicant HK$48,000 for costs of the application.

Court Disposition

Security for costs ordered; third party action to continue; trial fixed for 30 July 2012; costs of the application awarded to the applicant.

Orders

  • Pensonic Technology shall pay into court HK$240,000 within 21 days as security for Tse's costs; in default the third party claim against Tse will be stayed.
  • Tse is entitled to costs of and occasioned by this application amounting to HK$48,000 payable within 14 days.