Silver Stone Development Ltd and Another v. Lau Kwong Ching, James and Others

cacv 251/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 251 of 2006

(on appeal from HCA NO. 2206 of 2000)

BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 9 October 2006

Date of Ruling: 9 October 2006

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R U L I N G

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1.This is an application for security for costs on appeal by the 2^nd defendant against the judgment which has been given against a number of defendants.  The judgment was for a substantial sum and the other defendants, who are not appealing, have paid, apparently, their share but the 2^nd defendant has paid nothing.  He was asked for security for costs back in August and, on the pretext that he has been in Australia and China, he has not provided any reason as to why he should not.  Today we are faced with an application for an adjournment by his solicitors.  I am not prepared to accede to an adjournment.  The business of the court would come to a grinding halt if any time anybody was away from Hong Kong for a few days - albeit a businessman who must have a means of communication otherwise - an adjournment is granted.  Parties simply cannot expect the court to adjourn matters such as this.

2.In my view, the 2^nd defendant should provide security for costs.  It is no answer, as his counsel has argued, that even if the 2^nd defendant cannot afford the damages, the other defendants can.  The other defendants are not appealing this judgment and this is a question of security for costs. 

3.The order I propose to make is that:

“	1.	The 2nd defendant do on or before 6 November 2006 give security to answer costs in case any shall be awarded to be paid by the 2nd defendant to the 1st plaintiff by making lodgement in Court of the sum of $500,000 by cash or banker’s draft or by the provision of a bank guarantee of the like amount which guarantee shall have been approved by the Registrar;
		and until such lodgement be made and notice thereof given to the Registrar and to the Solicitors for the 1st plaintiff (such notice to be given on the same day as the lodgement is made) all proceedings in the said Appeal to be stayed.
	2.	In default of the 2nd defendant making such a lodgement as aforesaid within the time specified above or within such further time as the Court may for special reasons allow, the said Appeal do (upon the Solicitors for the 1st plaintiff certifying such default to the Registrar) stand dismissed out of this Court without further order.
	3.	In the event that the Appeal is dismissed in the circumstances provided for above the 2nd defendant do pay to the 1st plaintiff its costs occasioned by the said Appeal such costs to be taxed.
	4.	The costs of this application be costs in the Appeal.”

Mr Chan Pat-lun, instructed by Jesse H Y Kwok & Co., for the 1^st Plaintiff/ Respondent

Mr Eric Heung, of Messrs Tung, Ng, Tse & Heung, for the 2^nd Defendant/ Appellant