ERIC EDWARD HOTUNG AND ANOTHER v. HO YUEN KI AND OTHERS

ERIC EDWARD HOTUNG AND ANOTHER v. HO YUEN KI AND OTHERS

The court held the jurat was not defective (and in any event would be allowed under Order 41 r4); the consent orders only conferred liberty to apply and did not bind plaintiffs to automatic payment; there was no material change of circumstances making the 1st plaintiff ordinarily resident in Hong Kong; delay was not inordinate; consequently defendants were entitled to further security and the court fixed further security at HK$4,000,000 for each defendant, payable into court by the specified date, failing which the plaintiffs' action would be dismissed and proceedings stayed until payment.

Citation
ERIC EDWARD HOTUNG AND ANOTHER v. HO YUEN KI AND OTHERS
Parties
1st Plaintiff: Eric Edward Hotung; 2nd Plaintiff: Lare Sare Limited; 1st Defendant: Ho Yuen Ki; 2nd Defendant: Moon Valley Inc; 3rd Defendant: Mak Shun Ming Michael, also known as MICHAEL ERIC ALEXANDER BOSMAN HOTUNG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 April 2016
Case Number
HCA857/2011
Procedural Posture
High Court Action No 857 of 2011 Applications for Security for Costs / Pre Trial Applications for Further Security for Costs (trial Fixed)
Outcome
Applications for further security granted in part; further security ordered to be paid into court and proceedings stayed pending payment; default to result in dismissal of action
Legal Topics
Security for Costs, Ordinary Residence, Consent Orders, Affidavit Form/jurat, Delay, Quantification of Security
Source Language
EN
Civil Procedure Costs Evidence Civil Litigation Security for Costs Ordinary Residence Consent Orders Affidavit Form/jurat +2 more

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Parties

Eric Edward Hotung

1st Plaintiff

Lare Sare Limited

2nd Plaintiff

Ho Yuen Ki

1st Defendant

Moon Valley Inc

2nd Defendant

Mak Shun Ming Michael, also known as MICHAEL ERIC ALEXANDER BOSMAN HOTUNG

3rd Defendant

Procedural Posture

High Court Action No 857 of 2011 Applications for Security for Costs / Pre Trial Applications for Further Security for Costs (trial Fixed)

Legal Issues

  1. 1 Whether the jurat on the 1st plaintiff's affidavit was defective
  2. 2 Whether consent orders gave defendants an automatic right to further security or only liberty to apply
  3. 3 Whether there has been a material change of circumstances rendering the 1st plaintiff ordinarily resident in Hong Kong

Ratio Decidendi

The court held the jurat was not defective (and in any event would be allowed under Order 41 r4); the consent orders only conferred liberty to apply and did not bind plaintiffs to automatic payment; there was no material change of circumstances making the 1st plaintiff ordinarily resident in Hong Kong; delay was not inordinate; consequently defendants were entitled to further security and the court fixed further security at HK$4,000,000 for each defendant, payable into court by the specified date, failing which the plaintiffs' action would be dismissed and proceedings stayed until payment.

Court Disposition

Applications for further security granted in part; further security ordered to be paid into court and proceedings stayed pending payment; default to result in dismissal of action

Orders

  • The plaintiffs do on or before 26 April 2016 pay a total sum of $12,000,000.00 into Court in an interest bearing account as further security for the defendants' costs up to the conclusion of the trial (ie $4,000,000.00 for each of the defendants)
  • In default of payment of the said further security, the plaintiffs' action against the defendants be dismissed