Perennial Cable (H.K.) Ltd. v. Popbridge Industrial Ltd.

HCA013354/1999

HCA13354/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.13354 OF 1999

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Coram: Hon Cheung J in Chambers

Date of Hearing: 24 February 2000

Date of Decision: 24 February 2000

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D E C I S I O N

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1. This is an application by the plaintiff for security for costs against the defendant who has lodged an appeal against the judgment given by the Master against it. The appeal is to be heard on 6 March 2000.

2. The application for security is said to be made under Order 55 of the Rules of the High Court. Under Order 55, rule 7(6), the court may, in special circumstances, order security for costs of the appeal to be given.

3. The reliance on Order 55 is misconceived. The Order governs appeals which "by or under any enactment" lies to the Court of First Instance. The appeal under Order 55 contemplates an appeal from a court other than the Court of First Instance to the Court of First Instance. A Master is part of the Court of First Instance. The appeal brought by the defendant is against a summary judgment given by the Master. The appeal to the judge in chambers is not by or under any enactment, but by virtue of Order 58, rule 1.

4. Order 58 is not subject to Order 55 at all. Order 55 just does not fit into an appeal from master to judge. The appeal under Order 55 is by originating motion whereas an appeal under Order 58 is by notice. Order 55, rule 6A provides that interlocutory applications may be made to any judge or master, this does not fit well with the scheme under Order 58. Order 55 deals with different appeals. There is no provision for the court ordering security for costs in an appeal from master to judge in chambers under Order 58.

5. Accordingly, since I do not have jurisdiction to order security for costs, the application is dismissed without considering the merits of the application.

6. I will grant leave to publish this decision.

Representation:

Mr Neil Thomson, instructed by Messrs Liu, Chan & Lam, for the Plaintiff

Mr Wong Po Hoi, instructed by Messrs Victor Chu & Co., for the Defendant