ASIA-PAC INFRASTRUCTURE DEVELOPMENT LTD AND OTHERS v. SHEARMAN & STERLING (a firm) AND OTHERS

On the evidence the court was not satisfied that the 1st plaintiff would be unable to pay costs and therefore security under s357 against the 1st plaintiff was refused; however because the 4th plaintiff's claim is distinct, substantial and might attract costs orders solely against it the court departed from the normal rule protecting foreign co-plaintiffs and ordered security under Order 23 r1 against the 2nd to 4th plaintiffs in the sum of HK$1,000,000 to be provided by payment into court or bank guarantee within 28 days and stayed those plaintiffs' claims until security is provided; master’s earlier order for security against the 1st plaintiff is not disturbed as to costs below; no...

Citation: ASIA-PAC INFRASTRUCTURE DEVELOPMENT LTD AND OTHERS v. SHEARMAN & STERLING (a firm) AND OTHERS
Parties: 1st Plaintiff: ASIA-PAC INFRASTRUCTURE DEVELOPMENT LIMITED; 2nd Plaintiff: ASIA-PAC INFRASTRUCTURE FINANCE LIMITED; 3rd Plaintiff: ASIA-PAC GROUP INVESTMENTS LIMITED; 4th Plaintiff: GREATER BEIJING REGION EXPRESSWAYS LIMITED; 1st Defendant: SHEARMAN & STERLING (a firm); 2nd Defendant: SHEARMAN & STERLING LLP (formerly known as SHEARMAN & STERLING); 3rd Defendant: ANTONIA E. STOPLER; 4th Defendant: DOUGLAS P. BARTNER; 5th Defendant: ANDREW V. TENZER; 6th Defendant: HSIAO-CHIUNG LI; 7th Defendant: MATTHEW D. BERSANI; 8th Defendant: EDWARD L. TURNER III; 9th Defendant: HERBERT SMITH (a firm)
Court: Court of First Instance
Jurisdiction: Hong Kong
Judgment Date: 23 December 2008
Case Number: HCA806/2006
Procedural Posture: Civil Security for Costs / Interlocutory / Appeal Against Master's Order for Security for Costs (decision of Court of First Instance)
Outcome: Appeal allowed in part; master’s order varied
Legal Topics: Security for Costs, Companies Ordinance S357, Order 23 Rule 1 Rules of the High Court, Stay of Proceedings, Form and Quantum of Security
Source Language: EN

Civil Procedure Company Law Insolvency and Bankruptcy Professional Negligence (legal) Security for Costs Companies Ordinance S357 Order 23 Rule 1 Rules of the High Court Stay of Proceedings +1 more

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Parties

ASIA-PAC INFRASTRUCTURE DEVELOPMENT LIMITED

1st Plaintiff

ASIA-PAC INFRASTRUCTURE FINANCE LIMITED

2nd Plaintiff

ASIA-PAC GROUP INVESTMENTS LIMITED

3rd Plaintiff

GREATER BEIJING REGION EXPRESSWAYS LIMITED

4th Plaintiff

SHEARMAN & STERLING (a firm)

1st Defendant

SHEARMAN & STERLING LLP (formerly known as SHEARMAN & STERLING)

2nd Defendant

ANTONIA E. STOPLER

3rd Defendant

DOUGLAS P. BARTNER

4th Defendant

ANDREW V. TENZER

5th Defendant

HSIAO-CHIUNG LI

6th Defendant

MATTHEW D. BERSANI

7th Defendant

EDWARD L. TURNER III

8th Defendant

HERBERT SMITH (a firm)

9th Defendant

Procedural Posture

Civil Security for Costs / Interlocutory / Appeal Against Master's Order for Security for Costs (decision of Court of First Instance)

Legal Issues

1 Whether 1st plaintiff will be unable to pay defendants' costs within meaning of s357 Companies Ordinance
2 Whether court should exercise discretion to order security under s357
3 Whether security should be ordered against foreign plaintiffs under Order 23 where there is a resident co-plaintiff

Ratio Decidendi

Court Disposition

Appeal allowed in part; master’s order varied

Orders

Only the 2nd to 4th plaintiffs are ordered to give security for costs of the 1st to 8th defendants up to completion of discovery in the sum of HK$1,000,000 within 28 days by payment into court or by bank guarantee
The claims by the 2nd to 4th plaintiffs are stayed until the provision of the security