STAR GENIUS ENTERPRISES LTD v. KINGDOM POWER DEVELOPMENT LTD AND OTHERS

STAR GENIUS ENTERPRISES LTD v. KINGDOM POWER DEVELOPMENT LTD AND OTHERS

Although there was credible evidence that some costs might remain unpaid, the substantial overlap between the petitions and the fact that the petition could properly be regarded in substance as a defence to the cross-petition meant that exceptional circumstances to justify ordering security for costs under s.357 were not shown; accordingly the summons for security was dismissed and costs ordered to the petitioner.

Citation
STAR GENIUS ENTERPRISES LTD v. KINGDOM POWER DEVELOPMENT LTD AND OTHERS
Parties
Petitioner: Star Genius Enterprises Limited; 1st Respondent: Kingdom Power Development Limited; 2nd Respondent: Chang Miguel Yen Shee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 August 2012
Case Number
HCMP2672/2011
Procedural Posture
Companies Ordinance Petitions (s.168 a Purchase Petition and S.177(1)(f) Winding Up Petition) / Hearing of Summons for Security for Costs Under S.357
Outcome
Summons for security for costs dismissed
Legal Topics
Security for Costs, Winding Up (just and Equitable), Shareholder Dispute, Counterclaim as Defence
Source Language
EN
Company Law Insolvency Law Civil Procedure Security for Costs Winding Up (just and Equitable) Shareholder Dispute Counterclaim as Defence

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Parties

Star Genius Enterprises Limited

Petitioner

Kingdom Power Development Limited

1st Respondent

Chang Miguel Yen Shee

2nd Respondent

Procedural Posture

Companies Ordinance Petitions (s.168 a Purchase Petition and S.177(1)(f) Winding Up Petition) / Hearing of Summons for Security for Costs Under S.357

Legal Issues

  1. 1 Whether the defendants established by credible evidence that there is reason to believe the petitioner will be unable to pay defendants' costs if successful
  2. 2 Whether security for costs should be ordered in circumstances where there is an overlapping counterpetition/cross petition that operates as a defence
  3. 3 Assessment of the petitioner company's assets and liabilities for the purpose of s.357

Ratio Decidendi

Although there was credible evidence that some costs might remain unpaid, the substantial overlap between the petitions and the fact that the petition could properly be regarded in substance as a defence to the cross-petition meant that exceptional circumstances to justify ordering security for costs under s.357 were not shown; accordingly the summons for security was dismissed and costs ordered to the petitioner.

Court Disposition

Summons for security for costs dismissed

Orders

  • The summons for security for costs is dismissed
  • The 1st and 2nd respondents shall pay the petitioner’s costs of the summons forthwith