Yee Sang Metal Supplies Co v. Defag Construction Co and Another
Read the full judgment text of on BabelCite. was delivered on 1 April 1969.
1. This action originally came before the late Mr. Justice Creedon. After the hearing had continued for 5 days (25th/29th March 1968) the plaintiffs applied for an adjournment and the learned judge granted their application; but it was ordered that:-
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HCA002212A/1966 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION NO. 2212 OF 1966 -----------------
Coram: Blair-Kerr, J. Date of Judgment: 1 April 1969 ----------------- JUDGMENT ----------------- 1. This action originally came before the late Mr. Justice Creedon. After the hearing had continued for 5 days (25th/29th March 1968) the plaintiffs applied for an adjournment and the learned judge granted their application; but it was ordered that:-
The 2nd defendants have taxed their costs under heading (1) above but they have not yet taxed their costs under heading (2). 2. In the meantime, Mr. Justice Creedon died and the action was heard de novo by Mr. Justice Pickering who gave judgment in favour of the plaintiffs with costs. The plaintiffs' costs have been taxed at $19,403.25. 3. The 2nd defendants are appealing and the hearing of the appeal has been fixed for 5th/9th May. No grounds of appeal have yet been filed. I have glanced through the judgment. The decision appears to turn largely on questions of fact; and the learned judge's findings of fact appear to be based largely upon his construction of certain documents. 4. This is an application by the 2nd defendants for an order that execution on the sum of $19,403.25 being the plaintiffs' costs allowed on taxation be stayed until the determination of the appeal. 5. Counsel are not in dispute as to the general principles which should guide a court upon the hearing of such an application. As Lord Esher M.R. said in Atkins v. Great Western Railway(1):-
6. The managing director of the 2nd defendants has filed an affidavit; and in para. 6 he says:-
In reply the managing partner of the plaintiffs has filed an affidavit disclosing the plaintiffs' assets and income. There is no challenge to the facts disclosed by the plaintiffs; and the point has not been pursued by counsel for the 2nd defendants. I have no reliable evidence before me that the plaintiffs have been in financial difficulties; and consequently, I have no reason to think that if the appeal should be successful the 2nd defendants would not get back any costs paid by them now. 7. However, counsel has urged a further point. He says that the 2nd defendants' bill of costs under heading (2) above is in draft and that the costs involved are in the region of $7,000; and he submits that this court should order that the 2nd defendants pay $12,000 only into Court, that is to say $19,000 less $7,000. 8. Counsel for the plaintiffs submits that the 2nd defendants ought to have taken steps to ensure that their bill under heading (2) was taxed at the same time as the plaintiffs' bill of costs, and that it is not open to them now, upon an application of this nature, to put forward as a reason for a partial stay the fact that they have been tardy in submitting their bill for taxation. Alternatively, counsel submits that the sum of $7,000 should be reduced considerably; and he suggests that $16,000 should be paid now to the plaintiffs' solicitors. 9. I have looked at the draft bill for $7,000. This sum consists mainly of costs in respect of the hearing from the 25th/28th March 1968 which was rendered abortive because of the death of Mr. Justice Creedon. 10. I do not think that on this application I should have any regard to the 2nd defendants' draft bill. Whatever I say would inevitably have a bearing on the manner in which the taxing master would ultimately deal with it. The essential fact is that the 2nd defendants have been tardy in submitting their bill for taxation; and I do not think that they can complain if I decline to reduce the sum payable in respect of the plaintiffs' costs by $7,000 or by some lesser sum on the assumption that the final figure allowed by the taxing master may be something less than $7,000. 11. Counsel for the 2nd defendants submitted finally that the Court might well feel that English decisions such as The Annet Lyle(2) (which has been considered in a number of Hong Kong cases such as Brentwood Wig Manufactory Ltd. v. Richard Poncher & Another(3)) should not be followed blindly, the suggestion being that the Court should keep clearly in mind the possibility of "fly by night" companies operating in Hong Kong. 12. That, of course, is a matter which Hong Kong Courts must always keep clearly in mind. On the other hand, no court should speculate; and on the evidence before me I have no reason to think that the plaintiffs would not repay the $19,403.25 in the event of the 2nd defendants being successful on the appeal. 13. For the above reasons the application for a stay is refused. It is Ordered that the $19,403.25 be paid now to the plaintiffs' solicitors on the usual undertaking to repay in the event of the appeal being successful. Costs of this application to be paid by the 2nd defendants. Certified fit for counsel.
1 APR 1969 Representation: J. Swaine (Hastings & Co.) for Plaintiff. H. Litton (Samiel Soo & Co.) for 2nd Defendant. (1) (1886) 2 T.L.R. 400 (2) (1886) 11 P.D. 114 (3) (1966) H.K.L.R. 643. |