GRAND GAIN INVESTMENT LTD v. COSIMO BORRELLI AND ANOTHER

GRAND GAIN INVESTMENT LTD v. COSIMO BORRELLI AND ANOTHER

The court varied the costs order nisi: (1) certified the appeals as fit for two counsel; (2) confirmed liquidators must pay GGI's costs of the appeals (as previously ordered) but permitted the liquidators to recoup those costs from the companies' assets insofar as sufficient; (3) ordered that GGI pay the liquidators their costs of the striking out application and of the action on an indemnity basis because the claim was misconceived, procedurally wrong and futile, and it would be unjust for the liquidators or creditors to bear the shortfall.

Citation
GRAND GAIN INVESTMENT LTD v. COSIMO BORRELLI AND ANOTHER
Parties
Plaintiff and Creditor: Grand Gain Investment Limited; Liquidator and 1st Defendant: Cosimo Borrelli; Liquidator and 2nd Defendant: 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
HCA1463/2005
Procedural Posture
Companies (winding Up) and Related Civil Action (hccw 334/2004, 336/2004, 338/2004, HCA 1463/2005) / Ruling on Costs (chambers)
Outcome
Costs orders nisi varied as set out: two counsel certification granted; liquidators may meet appeal costs from company assets; GGI ordered to pay liquidators indemnity costs for striking out and action; no order as to costs of unopposed variation applications for appeals (each bears own costs).
Legal Topics
Liquidator's Costs, Indemnity Costs, Proofs of Debt, Striking Out, Section 276 Companies Ordinance
Source Language
EN
Company Law Civil Procedure Costs Law Liquidator's Costs Indemnity Costs Proofs of Debt Striking Out Section 276 Companies Ordinance

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Parties

Grand Gain Investment Limited

Plaintiff and Creditor

Cosimo Borrelli

Liquidator and 1st Defendant

Kelvin Edward Flynn

Liquidator and 2nd Defendant

Ocean Time Development Limited

Company in Liquidation

Goldgood Properties Limited

Company in Liquidation

Tinson International Limited

Company in Liquidation

Procedural Posture

Companies (winding Up) and Related Civil Action (hccw 334/2004, 336/2004, 338/2004, HCA 1463/2005) / Ruling on Costs (chambers)

Legal Issues

  1. 1 Whether the costs order nisi should be varied to certify fit for two counsel
  2. 2 Whether liquidators may meet costs awarded to creditor out of company assets
  3. 3 Whether claimant should be ordered to pay liquidators costs on an indemnity basis for a struck out action

Ratio Decidendi

The court varied the costs order nisi: (1) certified the appeals as fit for two counsel; (2) confirmed liquidators must pay GGI's costs of the appeals (as previously ordered) but permitted the liquidators to recoup those costs from the companies' assets insofar as sufficient; (3) ordered that GGI pay the liquidators their costs of the striking out application and of the action on an indemnity basis because the claim was misconceived, procedurally wrong and futile, and it would be unjust for the liquidators or creditors to bear the shortfall.

Court Disposition

Costs orders nisi varied as set out: two counsel certification granted; liquidators may meet appeal costs from company assets; GGI ordered to pay liquidators indemnity costs for striking out and action; no order as to costs of unopposed variation applications for appeals (each bears own costs).

Orders

  • Matter certified fit for the attendance of two counsel in respect of GGI's appeals.
  • Liquidators to pay 90% of GGI's costs of the appeals as previously ordered, taxed on a party and party basis, and liquidators are permitted to recoup those costs out of the assets of the companies concerned insofar as assets are sufficient.