Green Park Properties Ltd. v. Dorku Ltd.
Read the full judgment text of CACV 205/2000 on BabelCite. This Court of Appeal judgment was delivered on 26 September 2000 before Rogers VP.
Civil procedure – security for costs – appeal – impecunious company appellant – commercial conveyancing dispute – whether security should be ordered and quantum – Costs in Civil Proceedings – Defendant ordered to provide security – Court of Appeal – application for security for costs of an appeal from a judgment of Cheung J in HCA 8564 of 1998 ordering return of a deposit paid for the purchase of a property and awarding minor damages – defendant/appellant is a company of doubtful means with audited accounts not produced – past profits said to have been lost in unsuccessful further investments – whether security for costs should be ordered – whether sufficient strength in the appeal to dispense with security – whether security for costs of an appropriate case – whether the appeal is an appropriate case for security given the nature of the issues and that it is a large conveyancing case involving commercial entities – held: security for costs ordered – strength of appellant's case not sufficient to dispense with security – amount of security reduced from initial figure of HK$800,000 to HK$500,000 due to short timeframe for lodgment given imminent hearing date – defendant to lodge HK$500,000 by cash, banker's draft or approved bank guarantee on or before 17 October 2000 – stay on appeal proceedings until lodgment – appeal to stand dismissed without further order if default certified by plaintiff's solicitors – costs of the application to be the plaintiff's costs in the appeal – in event of dismissal for default, defendant to pay plaintiff's costs of the appeal to be taxed.
Legal issues: Whether security for costs should be ordered for the appeal · Amount of security for costs and time for lodgment
Outcome: Security for costs of the appeal ordered against the defendant/appellant in the sum of HK$500,000, to be lodged within 3 weeks, with a stay on appeal proceedings in default and dismissal of the appeal if lodgment is not made by the deadline.
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CACV000205B/2000 CACV205/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 205 OF 2000 (ON APPEAL FROM HCA 8564 OF 1998) ______________
______________ Coram: Hon Rogers VP in Chambers Date of Hearing: 26 September 2000 Date of Decision: 26 September 2000 _____________ D E C I S I O N _____________ 1. This is an application for security for costs of an appeal from a judgment of Cheung J, the judgment was given on 13 June 2000. 2. In effect, the Judge ordered the return of a deposit which the plaintiff had paid for the costs of the purchase of a property and he also awarded damages which are of a comparatively minor amount. 3. The basis of the application is that the defendant, who is the appellant, is impecunious. The defendant is a company. We have not seen the audited accounts but it is quite clear that the defendant does not have sufficient funds to finance the appeal. Whether or not those behind the defendant have sufficient funds is not altogether clear, as Mr Chan SC pointed out, in the past there were clearly large profits which had been made by the defendant. 4. Mr Mok on behalf of the defendant however says that that money has now disappeared in further investments which have not been so successful and, indeed, those responsible for running the defendant have had to move out of their own premises. Mr Mok on behalf of the defendant also sought to argue that the defendant has good grounds on the appeal for being successful. 5. I intend to say very little about the merits because the less I say at the moment the better, if this appeal is to proceed. I am of the view that given the nature of this case and the issues involved and the fact that it is a large conveyancing case involving commercial entities, this is an appropriate case for security for costs on the appeal. I am not satisfied that the strength of the appellant's case is sufficient to merit that there being no security for costs. In that case, I would have proposed to make an order that the defendant should provide $800,000 as security for costs on the appeal. This is a high amount, however, having listened to counsel, I concede that substantial sums will be involved in this appeal and although criticism was made as to some of the costs, they were comparatively minor criticisms and I consider that the figure which I would have come to is probably reasonable in the circumstances. However, in view of the fact that the appeal has been listed to be heard comparatively quickly it is necessary that any security is given within the next 3 weeks. I will therefore reduce the amount of security to $500,000 which I consider reasonable in view of the short time necessary to raise the security. 6. The order that I propose to make is :
Representation: Mr Edward Chan SC & Mr Li Chau Yuen instructed by Messrs Johnson Stokes & Master for Plaintiff/Respondent Mr Johnny Mok instructed by Messrs Leung, Chan & Pang for Defendant/Appellant |
Further hearings and rulings under CACV 205/2000