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

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

Leave to re-amend was refused because the proposed amendments would introduce a new cause of action that did not exist at the date of issue of the writ contrary to Hong Kong Court of Appeal authority; P1 was ordered to provide security for defendants' costs under section 357 Cap.32 and Order 23 r.1 because credible evidence and investigative findings justified the inference that the transactions relied upon to show P1's solvency were unreliable or sham and there was reason to believe P1 may be unable to pay defendants' costs.

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 (on behalf of itself and as assignee of Greater Beijing First Expressways Limited (In Liquidation)); 1st Defendant: Shearman & Sterling (a firm); 2nd Defendant: Shearman & Sterling LLP (formerly known as Shearman & Sterling); 3rd Defendant: Antonia E. Stolper; 4th Defendant: Douglas P. Bartner; 5th Defendant: andrew v. tenzer; 6th Defendant: hsiao-chung li; 7th Defendant: MATHEW D. BERSANI; 8th Defendant: EDWARD L. TURNER III; 9th Defendant: HERBERT SMITH (a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 December 2011
Case Number
HCA806/2006
Procedural Posture
Civil Professional Negligence Action With Interlocutory Applications for Security for Costs and Amendment / Interlocutory Judgment (in Chambers) Resolving Summonses for Leave to Amend and for Security for Costs
Outcome
1st summons (leave to re-amend) dismissed; order nisi that defendants have their costs (to be taxed if not agreed); P1 ordered to provide security for defendants' costs under s.357 Companies Ordinance Cap.32 and Order 23 r.1; liberty to apply if parties cannot agree consequential orders.
Legal Topics
Security for Costs, Amendment of Statement of Claim, Assignment of Causes of Action, Res Judicata and Interlocutory Applications, Order 23 R.1, Section 357 Companies Ordinance
Source Language
EN
Civil Procedure Company Law Professional Negligence Costs Law Equity Security for Costs Amendment of Statement of Claim Assignment of Causes of Action +3 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 (on behalf of itself and as assignee of Greater Beijing First Expressways Limited (In Liquidation))

4th Plaintiff

Shearman & Sterling (a firm)

1st Defendant

Shearman & Sterling LLP (formerly known as Shearman & Sterling)

2nd Defendant

Antonia E. Stolper

3rd Defendant

Douglas P. Bartner

4th Defendant

andrew v. tenzer

5th Defendant

hsiao-chung li

6th Defendant

MATHEW D. BERSANI

7th Defendant

EDWARD L. TURNER III

8th Defendant

HERBERT SMITH (a firm)

9th Defendant

Procedural Posture

Civil Professional Negligence Action With Interlocutory Applications for Security for Costs and Amendment / Interlocutory Judgment (in Chambers) Resolving Summonses for Leave to Amend and for Security for Costs

Legal Issues

  1. 1 Whether leave should be granted to re-amend the Statement of Claim to reflect assignments that post‑date the issue of the writ
  2. 2 Whether the court should order security for costs against P1 under section 357 Companies Ordinance Cap.32 and Order 23 r.1 Rules of the High Court
  3. 3 Whether interlocutory rulings previously made (by Master Yu and Poon J) preclude reconsideration of security applications given new evidence/investigations

Ratio Decidendi

Leave to re-amend was refused because the proposed amendments would introduce a new cause of action that did not exist at the date of issue of the writ contrary to Hong Kong Court of Appeal authority; P1 was ordered to provide security for defendants' costs under section 357 Cap.32 and Order 23 r.1 because credible evidence and investigative findings justified the inference that the transactions relied upon to show P1's solvency were unreliable or sham and there was reason to believe P1 may be unable to pay defendants' costs.

Court Disposition

1st summons (leave to re-amend) dismissed; order nisi that defendants have their costs (to be taxed if not agreed); P1 ordered to provide security for defendants' costs under s.357 Companies Ordinance Cap.32 and Order 23 r.1; liberty to apply if parties cannot agree consequential orders.

Orders

  • Dismissal of the plaintiffs' application for leave to re-amend the Amended Statement of Claim
  • Order nisi that all defendants are to have their costs (to be taxed in the absence of agreement)