POWER LEADER TECHNOLOGY DEVELOPMENT LTD v. ASIA PACIFIC BIOTECH CO LTD AND OTHERS

POWER LEADER TECHNOLOGY DEVELOPMENT LTD v. ASIA PACIFIC BIOTECH CO LTD AND OTHERS

Credible evidence showed the petitioner had no readily realisable assets to meet an adverse costs order and its indirect interest in SAUAM was not available to satisfy costs; the court exercised its discretion and, finding the petition would not probably be stifled, ordered security for costs fixed at HK$425,000 with a stay of proceedings if not provided within 28 days and ordered the petitioner to pay the respondents' costs of the application.

Citation
POWER LEADER TECHNOLOGY DEVELOPMENT LTD v. ASIA PACIFIC BIOTECH CO LTD AND OTHERS
Parties
Petitioner: Power Leader Technology Development Limited; 1st Respondent: Asia Pacific Biotech Co., Limited (formerly China Internet Investment Capital Limited); 2nd Respondent: Grant Smart (HK) Limited; 3rd Respondent: Lu Fei
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 January 2007
Case Number
HCCW544/2006
Procedural Posture
Companies (winding Up) Petition Under Companies Ordinance (cap. 32) / Security for Costs Application (chambers)
Outcome
Security for costs ordered against the petitioner
Legal Topics
Security for Costs, Unfairly Prejudicial Conduct (s168 A), Winding Up (s177(1)(f)), Shareholder Disputes, Asset Liquidity and Realisation
Source Language
EN
Company Law Civil Procedure Insolvency Law Security for Costs Unfairly Prejudicial Conduct (s168 A) Winding Up (s177(1)(f)) Shareholder Disputes Asset Liquidity and Realisation

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Parties

Power Leader Technology Development Limited

Petitioner

Asia Pacific Biotech Co., Limited (formerly China Internet Investment Capital Limited)

1st Respondent

Grant Smart (HK) Limited

2nd Respondent

Lu Fei

3rd Respondent

Procedural Posture

Companies (winding Up) Petition Under Companies Ordinance (cap. 32) / Security for Costs Application (chambers)

Legal Issues

  1. 1 Whether credible evidence shows the petitioner will be unable to pay the respondents' costs under s357 Cap.32
  2. 2 Whether the court should exercise its discretion to order security for costs or whether such an order would stifle the petition
  3. 3 Whether the petitioner’s indirect and non‑liquid assets (shares in the Company and interest in SAUAM) are available to meet a costs order

Ratio Decidendi

Credible evidence showed the petitioner had no readily realisable assets to meet an adverse costs order and its indirect interest in SAUAM was not available to satisfy costs; the court exercised its discretion and, finding the petition would not probably be stifled, ordered security for costs fixed at HK$425,000 with a stay of proceedings if not provided within 28 days and ordered the petitioner to pay the respondents' costs of the application.

Court Disposition

Security for costs ordered against the petitioner

Orders

  • Petitioner to pay into court HK$425,000.00 or provide a bank guarantee for HK$425,000.00 as security for the costs of the 2nd and 3rd respondents within 28 days, failing which all further proceedings in the petition are stayed until such security is provided.
  • Petitioner ordered to pay the costs of the 2nd and 3rd respondents of this security for costs application.