SUN-IOMS MAINTENANCE LTD. AND ANOTHER v. SHI KAI BIU AND OTHERS

SUN-IOMS MAINTENANCE LTD. AND ANOTHER v. SHI KAI BIU AND OTHERS

The court allowed the appeal and set aside the dismissal because the plaintiffs’ default was not intentional or contumelious, delay was excusable, there was no abuse of process and limitation had not expired; however, having regard to the plaintiffs’ uncertain future finances and the insufficiency of the 2nd...

Source-derived case information.

Citation
SUN-IOMS MAINTENANCE LTD. AND ANOTHER v. SHI KAI BIU AND OTHERS
Parties
1st Plaintiff: SUN-IOMS MAINTENANCE LIMITED (formerly IOMS GRANDMASS LIMITED); 2nd Plaintiff: CO-WINNER ENTERPRISE LIMITED (formerly GRANDMASS ENTERPRISE SOLUTION LIMITED); 1st Defendant: SHI KAI BIU; 2nd Defendant: YUE CHUNG WING; 3rd Defendant: CHOI SIU MAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 April 2006
Case Number
HCA1278/2002
Procedural Posture
Civil Action (appeal Against Dismissal for Want of Prosecution; Applications for Security for Costs) / Interlocutory Appeal and Applications in the Court of First Instance
Outcome
Appeal allowed; order dismissing actions set aside; proceedings restored; security for costs of $600,000 ordered against the 1st plaintiff under Companies Ordinance s.357; 1st defendant's security application dismissed.
Legal Topics
Want of Prosecution, Dismissal for Delay, Security for Costs, Companies Ordinance S.357, Abuse of Process, Costs Undertakings
Source Language
en
Civil Procedure Companies Law Costs Limitation Want of Prosecution Dismissal for Delay Security for Costs Companies Ordinance S.357 +2 more

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Parties

SUN-IOMS MAINTENANCE LIMITED (formerly IOMS GRANDMASS LIMITED)

1st Plaintiff

CO-WINNER ENTERPRISE LIMITED (formerly GRANDMASS ENTERPRISE SOLUTION LIMITED)

2nd Plaintiff

SHI KAI BIU

1st Defendant

YUE CHUNG WING

2nd Defendant

CHOI SIU MAN

3rd Defendant

Procedural Posture

Civil Action (appeal Against Dismissal for Want of Prosecution; Applications for Security for Costs) / Interlocutory Appeal and Applications in the Court of First Instance

Legal Issues

  1. 1 Whether the Master's order dismissing the actions for want of prosecution should be set aside
  2. 2 Whether plaintiffs' defaults amounted to intentional and contumelious default, inordinate and inexcusable delay, or abuse of process
  3. 3 Whether security for costs should be ordered under s.357 Companies Ordinance against the 1st plaintiff

Ratio Decidendi

The court allowed the appeal and set aside the dismissal because the plaintiffs’ default was not intentional or contumelious, delay was excusable, there was no abuse of process and limitation had not expired; however, having regard to the plaintiffs’ uncertain future finances and the insufficiency of the 2nd plaintiff’s undertaking as sole protection for the 2nd and 3rd defendants, the court ordered security for costs under s.357 Companies Ordinance against the 1st plaintiff in the sum of $600,000, dismissed the 1st defendant’s late application for security and made specified costs orders and a stay if the security is not paid within 21 days.

Court Disposition

Appeal allowed; order dismissing actions set aside; proceedings restored; security for costs of $600,000 ordered against the 1st plaintiff under Companies Ordinance s.357; 1st defendant's security application dismissed.

Orders

  • Appeal allowed and Master Souza's order dated 17 October 2005 dismissing the actions set aside; proceedings restored
  • Security for costs granted in favour of the 2nd and 3rd defendants against the 1st plaintiff under Companies Ordinance (Cap.32) s.357 in the sum of $600,000