JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH, also known as YU CHUAN YIH AND OTHERS

JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH, also known as YU CHUAN YIH AND OTHERS

The court found that MGHK's audited accounts together with admissions and surrounding circumstances constituted credible evidence that MGHK may be unable to pay Miranda's costs; the solicitors' affirmation alone lacked weight but did not negate the accounts; the merits of the counterclaim were not suitable for summary disposal at this stage; accordingly the court exercised its discretion to order security for costs in the amount of HK$1.5 million payable by MGHK up to discovery of documents and made a costs order nisi in favour of Miranda with summary assessment directions.

Citation
JOSE MIRANDA DA COSTA JUNIOR AND ANOTHER v. LORENZO YIH, also known as YU CHUAN YIH AND OTHERS
Parties
1st Plaintiff (original Action) / 1st Defendant (counterclaim): JOSE MIRANDA DA COSTA JUNIOR; 2nd Plaintiff (original Action) / 7th Defendant (counterclaim): MIRANDA GEMS E MINE LTDA; 3rd Defendant (original Action) / Plaintiff (counterclaim): MIRANDA GEMS (HK) LIMITED; 1st Defendant (original Action): LORENZO YIH; 2nd Defendant (original Action): PARAIBA LIMITED; 2nd Defendant (counterclaim): DHARMENDRA MUTHA; 3rd Defendant (counterclaim): TRIANGULO COMERCIO DE GEMAS E JOIAS LTDA; 4th Defendant (counterclaim): AZIZI ENTERPRISES COMPANY LIMITED; 5th Defendant (counterclaim): NEVESTONES LTDA; 6th Defendant (counterclaim): HATTA NEW WORLD COMPANY, LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 March 2014
Case Number
HCA156/2010
Procedural Posture
Interlocutory Application for Security for Costs in Counterclaim / Application Heard in Chambers (interlocutory)
Outcome
Order for security for costs granted in favour of Miranda against MGHK; security fixed at HK$1,500,000 up to discovery of documents; costs order nisi in favour of Miranda with summary assessment directions.
Legal Topics
Security for Costs, Insolvency, Discovery, Counterclaim, Summary Assessment of Costs
Source Language
EN
Civil Procedure Company Law Commercial Law Costs Law Security for Costs Insolvency Discovery Counterclaim +1 more

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Parties

JOSE MIRANDA DA COSTA JUNIOR

1st Plaintiff (original Action) / 1st Defendant (counterclaim)

MIRANDA GEMS E MINE LTDA

2nd Plaintiff (original Action) / 7th Defendant (counterclaim)

MIRANDA GEMS (HK) LIMITED

3rd Defendant (original Action) / Plaintiff (counterclaim)

LORENZO YIH

1st Defendant (original Action)

PARAIBA LIMITED

2nd Defendant (original Action)

DHARMENDRA MUTHA

2nd Defendant (counterclaim)

TRIANGULO COMERCIO DE GEMAS E JOIAS LTDA

3rd Defendant (counterclaim)

AZIZI ENTERPRISES COMPANY LIMITED

4th Defendant (counterclaim)

NEVESTONES LTDA

5th Defendant (counterclaim)

HATTA NEW WORLD COMPANY, LIMITED

6th Defendant (counterclaim)

Procedural Posture

Interlocutory Application for Security for Costs in Counterclaim / Application Heard in Chambers (interlocutory)

Legal Issues

  1. 1 Whether the plaintiff by counterclaim (MGHK) should be ordered to provide security for costs
  2. 2 Whether there is credible evidence that MGHK will be unable to pay the defendant by counterclaim's costs
  3. 3 What quantum of security is appropriate for security up to discovery of documents

Ratio Decidendi

The court found that MGHK's audited accounts together with admissions and surrounding circumstances constituted credible evidence that MGHK may be unable to pay Miranda's costs; the solicitors' affirmation alone lacked weight but did not negate the accounts; the merits of the counterclaim were not suitable for summary disposal at this stage; accordingly the court exercised its discretion to order security for costs in the amount of HK$1.5 million payable by MGHK up to discovery of documents and made a costs order nisi in favour of Miranda with summary assessment directions.

Court Disposition

Order for security for costs granted in favour of Miranda against MGHK; security fixed at HK$1,500,000 up to discovery of documents; costs order nisi in favour of Miranda with summary assessment directions.

Orders

  • MGHK to provide security for costs in the amount of HK$1,500,000 payable as security for costs up to the discovery of documents
  • Costs order nisi that the costs of this application be paid by MGHK to Miranda