Computer Personnel Ltd v. Thomas Lai Previously t/a Thomas Lai & Co

HCA004272/1979

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Coram: Liu, J. in Chambers

Date of Judgment: 30th June, 1981.

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DECISION

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1. This is an appeal against Mr. Registrar Blackwell's order made on the 12th June this year, whereby the plaintiff's action against the defendant was dismissed with costs on the ground that the plaintiff had failed to furnish security for costs in the sum of $30,000.

2. The controversy arose as a result of the defendant's application for security for costs which came to be heard by Mr. Registrar McClelland on the 18th May. The defendant was successful, and the plaintiff as a limited company was ordered to furnish, within 14 days, a satisfactory bank guarantee in the sum of $30,000 by way of secuirty for the defendant's costs in this action.

3. On the 18th May, the plaintiff company was represented in the proceedings which were contested before Mr. Registrar McClelland in the presence of, I believe, a director of the plaintiff company, Miss Dana Lau. After the proceedings, the plaintiff company in the person of its said director felt aggrieved, and instant instructions were virtually given for appealing against Mr. Registrar McClelland's decision. It was alleged that the plaintiff company in the person of its said director was not clearly briefed on the necessity for complying with the decision of the learned Registrar pending appeal. Notice of appeal was duly lodged.

4. After the expiration of the said period of 14 days, the defendant lost no time in issuing a summons against the plaintiff company for having its action against the defendant dismissed on the ground of non-compliance with the order made by Mr. Registrar McCllelland on the 18th May. The defendant's summons came before Mr. Registrar Blackwell on the 5th June. By this time, the plaintiff company in the person of its said director, Miss Dana Lau, had had the misfortune of experiencing a degree of discord with its former solicitors. The disagreement was apparently acute resulting in the withdrawal from the case of the plaintiff's then legal advisers. Miss Dana Lau herself was the third party to the action. At this hearing on the 5th June, she was properly informed by Mr. Registrar Blackwell that as a layman she was not in a position to represent the plaintiff limited company. As can be seen from the affirmation of Miss Dana Lau filed herein on the 25th June 1981, tactfully she did manage to put a word or two, and the hearing of the summons was adjourned to the 12th June 1981.

5. According to Miss Dana Lau, she was in the dark as to the legal position of the plaintiff company, particularly pending the appeal against Mr. Registrar McClelland's decision made on the 18th May. In short, she claimed to have been ignorant of as well the legal procedure as the legal consequences. The Court's attention was drawn to various aspects in the said affirmation of Miss Dana Lau. Criticism was levelled at the belated retainer of the present solicitor and at the claimed inability of the plaintiff's present solicitor to forthwith digest documents standing three inches thick. By the time the summons resumed before Mr. Registrar Blackwell on the 12th June, the plaintiff's present solicitor had been retained for two days.

6. Miss Lau's affirmation was read without much opposition. If leave for reading such further affidavit on appeal from a registrar was required, I would regard the same as having been granted. In the absence of cross-examination, Miss Dana Lau's assertions were to be taken as accurate. It is evident that the plaintiff company did then encounter difficulty with its legal advisers, the extent of which was, however, left unspecified. The present appeal was lodged on the 16th June, and it would appear that the plaintiff company had by the 25th June secured financial backing from a bank to the extent of $30,000, said to have been earmarked for the payment of its security for costs.

7. From the 18th May, the first hearing before Mr. Registrar McClelland to the 25th June, it had been a lapse of precisely a month and a week. It was slightly over 3 weeks from the expiration of the fortnight within which security was to be furnished. The delay cannot be said to be inordinate, particularly in the circumstances in which the plaintiff company found itself. In the light of the assertions contained in Miss Dana Lau's said affirmation, the plaintiff's default has not been shown to be dilatory, intentional or contumelious. Counsel for the defendant fairly conceded that whatever was the criterion adopted by the learned Registrar on 12th June, there would be nothing inhibitive against the plaintiff company from instituting a fresh action against the defendant after losing this appeal. It was urged by counsel for the defendant, however, that the circumstances in this case did not warrant any indulgence to be granted to the plaintiff and that the plaintiff must be responsible for the costs of this action up to date and be left to decide as to what future course it would take.

8. The plaintiff has not been sufficiently shown to have been dilatory, intentional or contumelious in its non-compliance of the learned Registrar's order made on the 18th May, and the punitive measure which I was invited to take by counsel for the defendant would, in my view, be wholly incommensurate with a fair compensation to the defendant or proper sanction of the plaintiff. The plaintiff has, by prima facie affidavit evidence, laid sufficient foundation for an extension of time to furnish security. Moreover, no useful purpose may be served by upholding what can best be described as an empty procedural victory scored by the defendant.

9. I need simply say that the decision of the learned Registrar could not have been reversed without the added information supplied on appeal. In the circumstances I allow the appeal and set aside Mr. Registrar Blackwell's order made on the 12th June 1981. The plaintiff do pay into the court within seven days from today $30,000 by way of security for costs of the defendant in this action, and in default the plaintiff's action against the defendant be dismissed with costs. Costs of the applications before the learned Registrar both on the 5th June, 1981 and the 12th June, 1981 be costs for the defendant in any event. Costs of this appeal be costs in the cause.

Representation:

Mr. Sammy Lee instructed by Cheng & Tong for the Plaintiff/Appellant.

Mr. Frankie Leung instructed by Chan & Cheng for the Defendant.