Anthony Rushton v. Ng Alexander Jr
Read the full judgment text of DCCJ 4272/2003 on BabelCite. This District Court judgment.
1. This was an application against the Plaintiff for security for costs of the Defendant under O.23, r.1 of the Rules of the District Court.
Cites 4 cases
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DCCJ 4272/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4272 OF 2003 -------------------- BETWEEN
-------------------- Coram : Deputy Judge C. M. Leung in Court Date of hearing : 28th March, 2006 Date of handing down Decision : 1st April, 2006
______________________ Reasons for Decision ______________________ Introduction 1.This was an application against the Plaintiff for security for costs of the Defendant under O.23, r.1 of the Rules of the District Court. 2.This was supposed to be the first day of a 2-day trial of this case. The Defendant's summons was filed on the weekend 3 days before today. Therefore included in the summons was also an application for abridgement of time for service of the summons to enable the same to be heard today. 3.I should mention that filed at the same time with this summons was another summons whereby the Defendant applied for adjournment of the trial. That summons was related to this one in that one of the grounds for the intended adjournment was said to be this application for security for costs. 4.After hearing both sides, I ordered that:
5.I now give the reasons for my decision. Background 6.The Defendant was and is in the business of rendering transportation, freight and shipment services. In 2002, the Plaintiff contracted for the Defendant's service of packing, warehousing and eventually shipping of his household contents and properties (“the Properties”) from his then Hong Kong home to Brisbane, Australia (“the Agreement”). The Plaintiff left Hong Kong in November 2002 and has since then been residing in Australia. According to the pleading, upon the arrival of the Properties at Australia, it was discovered that, amongst other things, some were missing and some were damaged. 7.In this action, the Plaintiff has essentially the following claims against the Defendant:
8.This action was commenced in July 2003. The Defendant had been unrepresented until legal aid was granted to him at the end of February 2006. As mentioned above, this application was filed on 25 March 2006. The application 8. As mentioned above, the Plaintiff has since November 2002 been residing in Brisbane, Australia. There is no dispute that the Plaintiff is ordinarily resident out of the jurisdiction for the purpose of O.23, r.1. 9.Both parties acknowledged that it is not an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs. Instead this is a real discretion of the Court which would be exercised having regard to all the circumstances of the case. It was after considering the following circumstances of this case when I decided against such an order. Previous application by the Defendant 10.The Defendant once applied for security for costs against the Plaintiff in September 2004 while he was still unrepresented. The Master dismissed that application after the hearing on 18 October 2004. The Plaintiff contended that the current application was effectively an appeal against the Master's order through the backdoor. 11.Miss Chow, appearing for the Defendant, answered that there was no appeal because the Defendant did not contend that the Master was wrong in the light of the circumstances prevailing at the time of that application. This is perfectly understandable. She went on to submit that the Plaintiff's objection was in any event a mere technicality as an appeal would bring the matter before the Judge who could consider the question afresh. The suggestion seemed to be that even if this were intended to be an appeal against the Master's decision, the fact that the matter was now before me as a result of the current application would serve the same purpose. If that was the suggestion, I could not agree with that. A party is estopped from making a further application on the same facts on the basis of which a previous application had been made and dismissed: see Hong Kong Civil Procedure 2006 at 23/3/21. 12.However Miss Chow did confirm that the basis of the current application was the change in circumstances since the Defendant's last application. I therefore proceeded to consider if the Defendant's such case was made out. Change in circumstances 13.The change in circumstances relied on by the Defendant was that with the grant of legal aid, the costs incurred and to be incurred by the Defendant would be of a much greater magnitude than before. In fact, the Defendant's solicitors have exhibited skeleton bills of costs in support of the application. 14.The intention of the Defendant to obtain legal representation and thus the probability of his exposure to more substantial legal costs was apparently not a new development. In fact, such intention has repeatedly been declared by the Defendant as a basis for asking for security for costs. In his Defence and Counterclaim (filed on 15 August 2003), the Defendant pleaded:
In his last summons (filed on 24 September 2004) for security for costs, the Defendant asked for, among others, an order that:
15.The parties differed in their interpretation of what might have led the Master to dismiss the Defendant's application then. In any event, the factor of the Defendant's intending to engage solicitors and thus incurring more substantial legal costs was at least made known to the Master. 16.Therefore, the real change in circumstances was the actual obtaining of legal representation. It cannot reasonably be denied that this change happened very late. This also led to the consideration of another factor – delay. Delay 17.The events since the grant of legal aid to the Defendant and leading to the current application are summarised as follows:
18.In the light of the above sequence of events since 9 March, I am not prepared to join the Plaintiff in criticising the Defendant's solicitors for not filing the current application soon after their becoming on the record. However the same criticism could not be saved insofar as the Defendant's delay is concerned. 19.Delay on the part of the Defendant, in the circumstances of this case, should not be narrowly viewed as referring to any delay in making the current application after his legal representatives entered into the picture. Otherwise, the Court would not be having regard to all the circumstances of this case. If the real change in circumstances justifying an order for security for costs now is said to be the actual obtaining of legal representation, the Defendant was clearly guilty of delay in obtaining such representation. 20.The action was commenced in July 2003. As mentioned above, the Defendant repeated in writing his intention to engage legal representation in August 2003 and September 2004. However the memorandum of notification of the Defendant's application for legal aid was only dated 27 August 2005. 21.The delay was not only substantial but was also unexplained. There was no properly adduced account of why the Defendant did not engage legal representation or apply for legal aid until August 2005 notwithstanding his previous express declarations of intention to do so. Even assuming that the Defendant had his reasons, the fact that there was a 2-year delay from August 2003 and that the current application was a very late one could not be changed. 22.Miss Chow submitted that delay is just one factor to be taken into consideration. To the extent that delay per se may not suffice to determine the question of entitlement to the security, I agree with her. However, resultant prejudice by an order for security against the Plaintiff now was indeed suggested. Prejudice 23.If security for costs is ordered now, the trial inevitably will have to be adjourned and all proceedings will have to be stayed pending the payment of the security. This course would be the most undesirable not simply from the perspective of proper case management by the court but also from the point of view of the Plaintiff who came from overseas with a view to commencing the trial. According to the Plaintiff's solicitors, when they were first notified of the intention of the Defendant's solicitors to request for security for costs, they immediately informed the Plaintiff of the same. However, the Plaintiff had already arranged the flight and accommodation in order to attend today's trial and scheduled to stay for only 7 days. Where the proceedings are not stayed (as in the case of security being ordered) or adjourned, I fail to see how the Plaintiff could have avoided coming. Now he was put in a situation where on the first day of the trial, the Defendant asked the proceedings to be stayed or adjourned pending his provision of security for costs. 24.This should not, in the circumstances of this case, be simply categorised as mere inconvenience or uncertainty of litigation which a litigating party from overseas should readily assume (as the Defendant suggested). This was an uncertainty caused by the Defendant at the very last minute and was more than mere inconvenience. In the case of Senior Honor Limited v Lee Ki Luk & Ors., unrep., HCA 4043/2001, 14 November 2003, Hon. A Cheung J (in Chambers), the defendants, following their letter requesting for security for costs, filed the application 1 month before the commencement of the 4-day trial. The application was heard just about 3 weeks before the trial. Applying BBMB Finance (Hong Kong) Ltd v China Underwriters Life and General Insurance Co Ltd [1991] 1 HKLR 619, the learned Judge said (at paragraph 7):
The learned Judge was not satisfied with the purported explanation of the late application by the defendants. Due to the need to raise the amount of the security, if ordered, before the commencement of the scheduled trial, the scheduled trial would stand a high chance of having to be adjourned. The learned Judge found that that, by itself, to a plaintiff must be a prejudice and said (at paragraph 13):
25.The circumstances of this case are in many aspects worse than those in the case just cited. I bear in mind that circumstances of cases do vary from one to another. That however does not affect my readiness, in the light of the history and circumstances of this case, to echo the observations of the learned Judge in the cited case. 26.Miss Chow referred me to the case of Cheong Shing Limited v Yu Kwan, unrep, HCA 12021/1998 & HCA 2183/2001, 19 December 2005, Hon Burrell J (in Chambers). In that case, the defendants made their applications, while the case was adjourned part-heard, against the Plaintiff (which had previously agreed to pay substantial security). The applications were for additional security necessitated by the unexpected substantial overrunning of the trial. It suffices for me to say that the circumstances of that case, particularly the consideration of the lateness of the applications and its implication, are materially different from those here. 27.I do not rule out that the Defendant may suffer if no security should be ordered. However, in the light of the history and the circumstances of this case, the Defendant would really be the author of any such predicament. Upon balancing both parties' circumstances, the call for a ruling in favour of the Plaintiff is clear. Merits 28.Parties have mentioned the consideration of the merits of the Plaintiff's case. However, in the circumstances of this case and at this stage, this could not be a significant consideration. The irony is that this was supposed to be the commencement of the trial on the merits of case with a view to final determination. Remark 29.I add the remark that after dealing with the Defendant's applications, parties would be resuming the trial of this case in 2 days.
Representation: Mr. Vincent Lam instructed by Messrs. Lam Pui King & Co. for the Plaintiff Miss Grace Chow instructed by Messrs. Richards Butler (on the instruction of the Director of Legal Aid) for the Defendant |
Cases cited in this judgment
Further hearings and rulings under DCCJ 4272/2003