Read the full judgment text of HCA 001178/1995 on BabelCite. This High Court CFI judgment was delivered on 11 February 2004 before Deputy High Court Judge Muttrie.
Civil procedure – security for costs – failure to comply with order for security – dismissal for want of prosecution – inherent jurisdiction of court – interlocutory order – appeal as of right to Court of Final Appeal. The plaintiffs in the original action appealed against the order of Master Woolley dismissing the action for failure to comply with an order for security for costs. The writ had been issued in 1995 and the action resumed in 1999. An order for security for costs of $1,000,000.00 within 21 days was made by Suffiad J on 7 April 2003 and upheld by the Court of Appeal on 23 October 2003. The plaintiffs failed to pay the security into court and on 17 November 2003 applied for the action to be dismissed, which order was made on 18 December 2003. Whether the order of Suffiad J contemplated dismissal for want of prosecution upon non-compliance – held, yes; the order provided that in the event security was not given in the time allowed, all further proceedings would be stayed until security was furnished or the action was dismissed for want of prosecution, and once security was not furnished within the time allowed, it was open to the defendant to apply for dismissal on that basis. Whether the court has inherent jurisdiction to dismiss the action for failure to comply with a section 357 order under the Companies Ordinance – held, yes; following Multi Sky Ltd and Speed Up Holdings, the court has inherent jurisdiction to dismiss where a prescribed time limit for payment of security has been disregarded. Whether the plaintiffs' pending application for leave to appeal to the Court of Final Appeal amounted to prosecution of the action – held, no; section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) requires the judgment to be final, and that requirement applies to both limbs of the subsection. Applying the application test from B & B Construction Ltd, the order for security for costs was interlocutory and did not determine the whole action, so the application for leave to appeal as of right could not succeed. There was no evidence that the plaintiffs would be able to furnish security if given further time, given the relatively modest sum ordered and the dismissal of the Court of Appeal appeal. The court below was entirely right to order dismissal. Appeal dismissed with costs to the defendant, to be taxed if not agreed. A subsequent appeal to the Court of Appeal (CACV64/2004) by the 1st and 3rd Plaintiffs was also dismissed.
Legal issues: Whether failure to furnish security for costs within the time ordered amounts to want of prosecution warranting dismissal · Whether the plaintiffs' pending application for leave to appeal to the Court of Final Appeal constitutes prosecution of the action · Inherent jurisdiction to dismiss action for non-compliance with security for costs order
Outcome: Appeal against the Master's order dismissing the action for want of prosecution dismissed; costs to the defendants, to be taxed if not agreed.
Cited by 1 case · Cites 1 case