Ng Ai Kheng, Jasmine v. The Open University of Hong Kong

cacv 257/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 257 of 2005

(on appeal from HCA NO. 9801 of 2000)

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BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 24 February 2006

Date of Handing Down Judgment: 24 February 2006

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D E C I S I O N

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1.This morning I heard an application to set aside a security for costs order which I had made on 16 January.  The order that I had made was that a sum of $250,000, in cash or by banker’s draft, or by bank guarantee, should be provided.  I vacated the trial date of 24 February.  Since then, the money has, in fact, been paid into court and the appeal date has been re-fixed for 1 March, which is next Wednesday.

2.However, the application this morning was made on the basis that the Plaintiff had not been served with the notice of application for security for costs.  Because the matter was unclear and, at the end of that hearing, I was not satisfied that the Plaintiff had not in fact served her notice of change of address which was the key to the whole matter, I set aside my order and ordered that the application for security for costs should be heard at 2.30 this afternoon.  I did so because the appeal is due to be heard next week and there should be no further delay in this matter as any delay will only run up more costs which is quite undesirable. 

3.At the commencement of the hearing of this appeal, the Plaintiff said that she had only just been served with the papers on the application.  I therefore went through with her the question as to her means.  The Plaintiff has told me that the $250,000 has been borrowed from friends, although she has plenty of money herself - she has $1.5 million at least, as I understand it, on fixed deposit in various sums, spread around, on yearly deposit.  She also says that her circumstances are not so bad as they were portrayed in the defendant’s evidence because she does not now have a mortgage to pay.  She still has her income of about $40,000 a month but her expenses are only $10,000 because she lives with either her family or her friends.  She says that there is another property which she owns, and she says that, next year, her husband will be discharged from bankruptcy and therefore be able to resume his payments of $50,000.

4.Be that as it may, I am faced with a problem.  I am left in a slight quandary as to the Plaintiff’s means.  Clearly, she has not got the income to sustain heavy litigation such as this and the costs that would be incurred.  But this matter is coming up for appeal next week and there is now no time for further evidence to be filed on each side.  So in my view, I have to take a realistic view and the realistic view that I take is that the money is in court, so that is secured.  Albeit it has been borrowed from friends, but because of what the Plaintiff has told me, that she does have these very substantial deposits, that money which has been borrowed from friends is in no jeopardy at all because the Plaintiff will be able to repay her friend from the deposits when they mature.  Indeed, she will probably be able to withdraw some of that money straightaway even if there is a penalty in respect of the interest on it.  Since interest on deposits at the moment is not that great anyway, it is not a very great penalty to have to forego interest.  So that is the basis upon which I proceed.

5.The Plaintiff has argued that she has strong merits on the appeal.  I think it would be undesirable for me to say any more than that I have read the judgment and I think that the Plaintiff will have a substantial task on the appeal.  Since the appeal is coming up next week, I do not propose to say anything which might in any way influence the course that that appeal might take.  It is sufficient, on my reading of the matter, that the merits of this appeal fall in favour of granting the security for costs.

6.I therefore propose to order that the security for costs remain in court on the same terms as the order which was made on 16 January.

The Plaintiff/Appellant, in person

Mr Robin McLeish, instructed by Messrs Paul, Hastings, Janofsky & Walker, for the Defendant/Respondent