Wong Hung Yuen v. John Fang

CACV001114/2000

CACV 1114/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1114 OF 2000

(ON APPEAL FROM HCA 11795 OF 1999)

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Coram: Hon Woo JA in Chambers

Date of hearing: 25 September 2001

Date of handing down judgment: 26 September 2001

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JUDGMENT

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Hon Woo JA :

This is an application by summons dated 24 August 2001 made by the defendant for security for costs of the appeal brought by the plaintiff from the judgment of the Deputy High Court Judge Kwan (as she then was) handed down on 14 December 2000.

2.The plaintiff brought the original action, namely HC No. 11795 of 1999 ("HC 11795/99") against the defendant for damages for negligence in the defendant's handling of a sale and purchase transaction regarding a property of the plaintiff. By a sale and purchase agreement dated 19 April 1988 made between the plaintiff and the purchaser of the property, which agreement was prepared by the defendant, the plaintiff agreed to sell the property to the purchaser at the price of $520,000, to be completed on 9 June 1988. It was alleged by the plaintiff that at the time of the execution of the agreement by him and the purchaser before one Mr Leung King Kong ("Mr Leung") of the defendant's firm, Mr Leung represented to him that a deposit of 10% of the purchase money would be paid by the purchaser within a matter of a week or 10 days. It was further alleged by the plaintiff that the purpose of his selling of the property that was his own home was that he wanted to get money as a matter of urgency to help funding his factory which was in financial difficulty.

3.The plaintiff also alleged that he was not paid the 10% deposit on the completion day of 9 June 1988 or even after that day. When he was requested to complete the transaction on 27 June 1988, he refused to do so. He further sent a letter dated 7 July 1988 to the defendant's firm to inform them that he wished to rescind the agreement. Nothing had happened until May 1990 when the purchaser brought High Court Action A2473 of 1990 ("HC A2473/90") against the plaintiff for specific performance of the agreement. On 9 August 1993, Godfrey J (as he then was) gave judgment in favour of the purchaser after trial. The plaintiff was represented by counsel at that trial. Thereafter, he wished to appeal against the judgment but he was not financially capable of engaging lawyers to do so. He could not bring the appeal proceedings himself because he did not understand English. He applied for legal aid, but legal aid was refused. He continued to apply for legal aid a number of times and was refused each time.

4.In 1998, realising that he could use Chinese in court, without legal assistance, he sought leave on 29 June 1998 to appeal against Godfrey J's judgment. On 26 February 1999, the Court of Appeal dismissed the plaintiff's appeal. However, from the judgment of the Court of Appeal, the plaintiff learned that he might have a claim against the defendant. As a result, on 22 July 1999, he brought the original action, HC 11795/99, against the defendant.

5.On 22 August 2000, Master Lam dismissed the plaintiff's action on the ground that his claim for negligence against the defendant had been barred by limitation.

6.On 14 December 2000, upon the plaintiff's appeal, Deputy Judge Kwan also dismissed the action.

7.The plaintiff filed a notice of appeal dated 28 December 2000 to appeal against the judgment of Deputy Judge Kwan.

8.This application before me is made the defendant for security for costs of the appeal.

9.Under Order 59 rule 10(5) of the Rules of the High Court, the Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just.

10.It is settled practice to require security for costs to be given by an appellant who would be unable through impecuniosity to pay the costs of the appeal, if unsuccessful, without proof of any other special circumstances. See the notes in the Hong Kong Civil Procedure 2001 under the heading of "Security for Costs", para 59/10/28 et seq.

11.Where, however, an appellant contends that security should not be awarded because it would prevent him pursuing his appeal, he has to satisfy the Court not only that he is unable to furnish the security for costs from his own resources, but also (and the onus of proof is on him on this issue) that he is unable to raise the money elsewhere; and in addition he has to demonstrate that his appeal has a sufficiently good chance of success to justify exposing the respondent to the injustice of having to bear his own costs win or lose. However, the security application must not become a dress rehearsal of the appeal. See para 59/10/35 of the Hong Kong Civil Procedure 2001.

12.In the grounds of appeal dated 6 February 2001 written by the plaintiff, it is stated that he had no financial capability to retain a lawyer and that on 17 May 1999, when the bailiffs executed the order for possession against him under HC A2473/90, he only brought out some clothing and left the property with no home and no place over his head. He also mentioned that his factory had been wound up. At the hearing before me, he confirms that his factory had closed and tells me that he is "bankrupt". It is therefore plain that the plaintiff is impecunious which would cause difficulty, or indeed inability, to the defendant in recovering the costs of the appeal, if the appeal is unsuccessful.

13.Moreover, after the bringing of the appeal, the plaintiff has given two notices of change of address. At both times, however, only a care of address was given. His residential address is not shown and is unknown to the defendant. This may lead to the inference being drawn that he tries to avoid execution.

14.In addition to the materials contained in his 3-page written submissions in writing stressing how time should be calculated, the plaintiff tries to impress me how sure he is to win his appeal. Both Master Lam and the Deputy Judge dismissed the plaintiff's action on the ground that the cause of action had accrued and that he first had knowledge required for bringing an action for damages against the defendant and a right to bring the action before the respective periods allowed by section 31(4) of the Limitation Ordinance, Cap 347. I have read the judgment of the Deputy Judge very carefully, and without going into detail, I find her analyses of the relevant facts and the law for reaching her conclusion in striking out the plaintiff's action correct. I am therefore of the view that there is little merit in the plaintiff's appeal. In the circumstances, there is no justification to leave the defendant open to the risk of not having his costs of the appeal met in the event of the appeal being unsuccessful. It is therefore a proper case for me to order security for such costs.

15.In the skeleton bill exhibited to an affirmation filed on behalf of the defendant in this application, a sum of $98,000 is assessed as the required amount for security. That sum was mentioned in a request dated 2 August 2001 made by the defendant's solicitors to the plaintiff, to which the plaintiff did not response. However, included in the sum of $98,000 is a sum of $9,000 for the costs in relation to the plaintiff's two unsuccessful applications for stay of execution regarding the costs orders made by Master Lam and Deputy Judge Kwan. I do not think it just to include this sum of $9,000 in the amount to be secured, because the money could not justifiably be considered as part of the costs of the appeal. Moreover, in the skeleton bill referred to above, there is no mention whether the estimated costs of appeal was made on the basis of party and party or solicitors and own client. In all the circumstances, I consider that a sum of $59,000 to be secured would be fair and just. I therefore make the following orders:

(1) The plaintiff do within 28 days from the date of this order give security in the sum of $59,000 for the costs of the appeal herein;

(2) The security may be given by the plaintiff by depositing a sum of $59,000 into court within the time in (1) above;

(3) As an alternative to (2), the plaintiff may within 28 days from the date of this order, provide security for the sum of $59,000 in such form or manner as may be approved by the Registrar;

(4) Until the security is given, the appeal be stayed; and

(5) In default of the security being given within the time aforesaid, the appeal do stand dismissed without any application and without any further order, with costs to be taxed and paid by the plaintiff to the defendant.

16.I also make an order nisi that the costs of this application be in the cause of the appeal.

Representation:

Wong Hung Yuen, the Plaintiff, in person.

Mr Kenneth W H Ng, instructed by Messrs Gallant Y T Ho & Co, for the Defendant.

上訴法庭駁回原告人的上訴。請參閱CACV1114/2000 日期: 2002年5月31日