JADE PLAN ASSETS LTD AND OTHERS v. LAU KIM HUNG JACK AND OTHERS

JADE PLAN ASSETS LTD AND OTHERS v. LAU KIM HUNG JACK AND OTHERS

The Court found the 2nd Plaintiff failed to rebut the prima facie case that it is ordinarily resident outside Hong Kong because central management and control was not demonstrated to be in Hong Kong (notably no affidavit from Fung and lack of documentary evidence); the 2nd Plaintiff's claim was not shown to have a high probability of success at this interlocutory stage; accordingly the Court exercised its discretion under O.23 r 1(1) to order security for costs and fixed the quantum at HK$400,000, set aside the Master's order and stayed further proceedings until security is paid.

Citation
JADE PLAN ASSETS LTD AND OTHERS v. LAU KIM HUNG JACK AND OTHERS
Parties
1st Plaintiff: JADE PLAN ASSETS LIMITED; 2nd Plaintiff: RONDEN INTERNATIONAL LIMITED; 3rd Plaintiff: CHEUNG YU TONG TONY; 1st Defendant: LAU KIM HUNG JACK; 2nd Defendant: NEW HORIZON ASSOCIATES LIMITED; 3rd Defendant: STAR CHOICE INVESTMENT LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 September 2008
Case Number
HCA910/2007
Procedural Posture
Civil Interlocutory Application for Security for Costs Arising From Trust and Fiduciary Claims / Interlocutory Appeal From Master's Order (chambers Hearing)
Outcome
Appeal allowed in part; Master's order set aside; security for costs ordered against 2nd Plaintiff
Legal Topics
Security for Costs, Quistclose Trust, Fiduciary Duties, Central Management and Control, Residence for Jurisdictional Purposes
Source Language
EN
Civil Litigation Trusts Company Law Civil Procedure Costs Security for Costs Quistclose Trust Fiduciary Duties +2 more

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Parties

JADE PLAN ASSETS LIMITED

1st Plaintiff

RONDEN INTERNATIONAL LIMITED

2nd Plaintiff

CHEUNG YU TONG TONY

3rd Plaintiff

LAU KIM HUNG JACK

1st Defendant

NEW HORIZON ASSOCIATES LIMITED

2nd Defendant

STAR CHOICE INVESTMENT LIMITED

3rd Defendant

Procedural Posture

Civil Interlocutory Application for Security for Costs Arising From Trust and Fiduciary Claims / Interlocutory Appeal From Master's Order (chambers Hearing)

Legal Issues

  1. 1 Whether the 2nd Plaintiff (BVI company) is ordinarily resident in Hong Kong
  2. 2 Whether it was just to order security for costs under O.23 r 1(1) against the 2nd Plaintiff
  3. 3 Whether the 2nd Plaintiff's claim has a high probability of success

Ratio Decidendi

The Court found the 2nd Plaintiff failed to rebut the prima facie case that it is ordinarily resident outside Hong Kong because central management and control was not demonstrated to be in Hong Kong (notably no affidavit from Fung and lack of documentary evidence); the 2nd Plaintiff's claim was not shown to have a high probability of success at this interlocutory stage; accordingly the Court exercised its discretion under O.23 r 1(1) to order security for costs and fixed the quantum at HK$400,000, set aside the Master's order and stayed further proceedings until security is paid.

Court Disposition

Appeal allowed in part; Master's order set aside; security for costs ordered against 2nd Plaintiff

Orders

  • 2nd Plaintiff to pay into Court as security for 1st Defendant's costs up to setting down for trial HK$400,000 within 14 days of order
  • Proceedings by 2nd Plaintiff against 1st Defendant stayed until such security is given