RE OCEAN TIME DEVELOPMENT LTD AND OTHERS

RE OCEAN TIME DEVELOPMENT LTD AND OTHERS

The court varied the costs nisi: certified the appeals fit for two counsel and allowed the liquidators to recoup GGI's costs from the companies' assets; held the personal action against liquidators was procedurally wrong and futile because the correct mechanism was an application under s.276, and accordingly awarded the liquidators their costs of the strike‑out application and of the action on an indemnity basis to prevent them and the creditors bearing the shortfall.

Citation
RE OCEAN TIME DEVELOPMENT LTD AND OTHERS
Parties
Plaintiff / Creditor: Grand Gain Investment Limited; 1st Defendant / Liquidator: Cosimo Borrelli; 2nd Defendant / Liquidator: Kelvin Edward Flynn; Company in Liquidation: Ocean Time Development Limited; Company in Liquidation: Goldgood Properties Limited; Company in Liquidation: Tinson International Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 September 2006
Case Number
HCCW334/2004
Procedural Posture
Companies (winding‑up) / Civil Action / Ruling on Costs Following Judgment on Leave to Appeal and Strike‑out Application
Outcome
Costs orders nisi varied: (a) appeals — certified fit for two counsel; liquidators to pay Grand Gain 90% of costs of appeals (taxable party and party) and may recoup from the companies' assets; (b) strike‑out — Grand Gain ordered to pay liquidators' costs of the strike‑out application and of the action on an...
Legal Topics
Liquidators' Costs, Proof of Debt Appeals, Strike‑out, Indemnity Costs, Recoupment From Company Assets, Procedure Under Section 276 Companies Ordinance
Source Language
EN
Company Law Insolvency Civil Procedure Costs Law Liquidators' Costs Proof of Debt Appeals Strike‑out Indemnity Costs +2 more

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Parties

Grand Gain Investment Limited

Plaintiff / Creditor

Cosimo Borrelli

1st Defendant / Liquidator

Kelvin Edward Flynn

2nd Defendant / Liquidator

Ocean Time Development Limited

Company in Liquidation

Goldgood Properties Limited

Company in Liquidation

Tinson International Limited

Company in Liquidation

Procedural Posture

Companies (winding‑up) / Civil Action / Ruling on Costs Following Judgment on Leave to Appeal and Strike‑out Application

Legal Issues

  1. 1 Whether the costs of the appeals should be certified for two counsel
  2. 2 Whether the costs payable by the liquidators may be recouped from the companies' assets
  3. 3 Whether liquidators are entitled to indemnity costs against a creditor who sued them personally

Ratio Decidendi

The court varied the costs nisi: certified the appeals fit for two counsel and allowed the liquidators to recoup GGI's costs from the companies' assets; held the personal action against liquidators was procedurally wrong and futile because the correct mechanism was an application under s.276, and accordingly awarded the liquidators their costs of the strike‑out application and of the action on an indemnity basis to prevent them and the creditors bearing the shortfall.

Court Disposition

Costs orders nisi varied: (a) appeals — certified fit for two counsel; liquidators to pay Grand Gain 90% of costs of appeals (taxable party and party) and may recoup from the companies' assets; (b) strike‑out — Grand Gain ordered to pay liquidators' costs of the strike‑out application and of the action on an...

Orders

  • Appeals costs: certified fit for two counsel; liquidators to pay Grand Gain 90% of Grand Gain's costs of the appeals, taxed on party and party basis; liquidators may recoup those costs from the assets of the companies concerned
  • Strike‑out and action costs: Grand Gain to pay the liquidators' costs of the striking out application and of the action; such costs to be taxed on the indemnity basis if not agreed