Case Document

100%Judiciary

CACV000434/2002

CACV 434/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 434 OF 2002

(ON APPEAL FROM HCMP NO. 4724 OF 2001)

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	IN THE MATTER of ALL That One equal undivided 45th part of share of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as SECTION A OF INLAND LOT NO. 2258 and THE REMAINING PORTION OF INLAND LOT NO. 2258 And of and in the messuages erections and buildings thereon known as BLOCKS "C" AND "D" VICTORIA COURT ("the said Building") TOGETHER WITH the sole and exclusive right and privilege to the use occupation and enjoyment of ALL THAT APARTMENT NO. C14 on the FOURTEENTH FLOOR of the said Building.

	AND

	IN THE MATTER of a Deed of Mortgage dated the 28th day of June 2000 and registered in the Land Registry by Memorial No. 8128764

	AND

	IN THE MATTER of Order 88 of the Rules of High Court, Cap. 4

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BETWEEN
	ABN AMRO BANK N V	Plaintiff

	AND

	MANHARLAL TRIKAMDAS MODY	1st Defendant
	MEENA MANHARLAL MODY	2nd Defendant

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Coram: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 2 April 2003

Date of Judgment: 2 April 2003

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for security for costs on appeal. It is brought in somewhat of a hurry because apparently the plaintiffs were told that this was the only date which was available. I am not sure whether that is correct but in the event, it does not matter. The skeleton argument was only served on the 2nd defendant yesterday, which of course is too short a notice. The 2nd defendant is not present although her daughter is here and we have explained to the daughter that the daughter is not able to represent her mother as such.

2.Nevertheless, we have heard Miss Lan on her application for security for costs which is based primarily on the ground that the appeal does not have very much chance of success and that the 2nd defendant is impecunious. She has drawn our attention to two passages in affirmations which have been filed which demonstrate that.

3.For my part, the impecuniosity in this case does not take the plaintiffs home for this reason: it is the 2nd defendant's case that, all along, all that has happened as a background to the action and in the action itself was conducted by her husband without her knowing, properly, what has happened. She has filed affirmations to that effect.

4.I see no basis, having read the files, not to believe the 2nd defendant in that respect. If that be right, it explains not only the delay in bringing the appeal, which the 2nd defendant wishes to against Master Au-Yeung's original order, but it also explains some of the difficulties that have happened since then.

5.In my view, this appeal cannot be considered to be one without merit. The application for security for costs is put on the basis that the 2nd defendant cannot afford any security, or is impecunious and it seems to me that if this court were to order security for costs, particularly in the amount asked for in the summons, that would stifle this appeal. In my view, in the circumstances of this case, that would be wrong and I do not therefore propose to order security.

6.I would therefore not accede to this application for security for costs.

Hon Le Pichon JA:

7.I agree.