95180-EN-2014-09-18
GURDAS S CHOITHRAMANI v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD
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Civil Action2011
GURDAS S CHOITHRAMANI v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD
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93061-EN-2014-04-29
GURDAS S CHOITHRAMANI v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD
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HCA 2073/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2073 OF 2011
______________________
BETWEEN
| GURDAS S CHOITHRAMANI | Plaintiff | |
| and | ||
| THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED | Defendant |
______________________
| Before: Deputy High Court Judge Whitehead, SC in Chambers |
| Date of Hearing: 29 April 2014 |
| Date of Ruling: 29 April 2014 |
__________
R U L I N G
___________
1. I do not think that this is an appropriate case for indemnity costs. Counsel for the defendant has drawn my attention to the very serious allegations which are made in this case. They are not being pursued today because this matter has now been struck out.
2. I accept that the allegations are very serious, but two matters must be borne in mind. First, the truth or otherwise of these allegations has not been tested; and, secondly, as far as I can see, and what I am told by counsel today, the plaintiff does not intend to abandon these allegations but wishes to take the matter further if he can through the Official Receiver.
3. So, in those circumstances, I think that the seriousness of the allegations which would otherwise have probably attracted an indemnity costs order do not meet the mark in this particular circumstance.
4. In my view, the matters appearing in the statement of costs for summary assessment prepared by Mayer Brown JSM are perfectly reasonable. This is a long and protracted litigation with a very difficult history. The plaintiff in these proceedings has raised a myriad of issues, some of them are matters of law which are very difficult, and I have no hesitation in ruling that the matters charged for both by solicitors and counsel are perfectly proper and reasonable.
5. I have done my own calculation - it can be checked, of course, if I have got it wrong - a 30 per cent reduction brings the matter to $1,562,402. I intend to round that down $1.55 million, and I so rule.
6. The orders I make are as follows:
(1) The application for indemnity costs is refused.
(2) Costs are taxed and assessed in the sum of $1.55 million to be paid by the plaintiff to the defendant within 28 days hereof.
| (Robert Whitehead SC) Deputy High Court Judge |
Mr Mohnani, Dheeraj Suresh, of Jal N Karbhari & Co, for the plaintiff
Mr Eugene Fung, SC, leading Ms Janet Ho, instructed by Mayer Brown JSM, for the defendant
93062-EN-2014-04-28
GURDAS S CHOITHRAMANI v. THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD
HTML content
HCA 2073/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2073 OF 2011
______________________
BETWEEN
| GURDAS S CHOITHRAMANI | Plaintiff | |
| and | ||
| THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED | Defendant |
______________________
| Before: Deputy High Court Judge Whitehead, SC in Chambers |
| Date of Hearing: 28 April 2014 |
| Date of Ruling: 28 April 2014 |
__________
R U L I N G
___________
1. By an application dated 17 July 2012, the defendantseeks to strike out the entirety of the plaintiff’s Statement of Claim in this matter on the grounds that it discloses no reasonable cause of action, it is frivolous and vexatious and constitutes an abuse of process.
2. The defendant raises four main arguments: no locus standi; abuse of process; limitation and the rule against reflective loss.
3. As to the first of these, no locus standi, Mr Fung SC, counsel for the defendant, asserts that as the causes of action pleaded in the Statement of Claim have accrued before or upon the plaintiff’s bankruptcy, that the only party who can prosecute these proceedings in respect of the purported causes of action is the Official Receiver.
4. Mr Reynolds, counsel on behalf of the plaintiff accepts that Mr Fung’s analysis is correct. The court also accepts that this is the position, and as such the Statement of Claim is bound to be struck out on the basis that the plaintiffhas no locus standi.
5. That being the case, Mr Reynolds submits that the court has no jurisdiction to determine Mr Fung’s other heads of complaint, the court having no jurisdiction to make further findings or orders in respect of a party who has no locus standi in the proceedings.
6. Mr Fung SC maintains that despite the plaintiff having no locus standi the court can and should, pursuant to Order 18 rule 19, nevertheless hear and determine his other complaints.
7. In my view, once it is finally determined that a plaintiff has no locus standi to bring or maintain these proceedings, the court has no jurisdiction to nevertheless determine the arguments advanced by Mr Fung.
8. If I am wrong about this, and if I do have jurisdiction to deal with the matters, then in my discretion I decline to do so at this stage.
9. Order 18 rule 19 provides that a court may at any stage of the proceedings strike out a pleading. It may be that the plaintiff will approach the Official Receiver; and it may be that the Official Receiver will assign the proceedings or consent to the plaintiff bringing an action.
10. If the Official Receiver does take his matter up, then although perhaps vexing to the defendant, there is no real prejudice as it can ventilate the same arguments at a later time, being the time that the matter is taken up by the Official Receiver.
11. However, Mr Fung submits that there is, to quote, “No real likelihood that this will happen”, and Mr Reynold’s position is that, at best, there is only a prospect that this may occur.
12. In these circumstances, it appears to me, without in any way wishing to influence the Official Receiver, that it is at leastunlikely that the Official Receiver will take this matter further. There can be no justification, in my view, in spending two to three more days of court time adjudicating upon issues which, in the event, may never need to be decided in order to resolve this case.
13. In these circumstances, I order that the Statement of Claim be struck out on the basis that the plaintiff has no locus standi to pursue this action.
| (Robert Whitehead SC) Deputy High Court Judge |
Mr G O Reynolds, instructed by Jal N Karbhari & Co, for the plaintiff
Mr Eugene Fung, SC, leading Ms Janet Ho, instructed by Mayer Brown JSM, for the defendant