Carewins Development (China) Ltd v. Bright Fortune Shipping Ltd

cacv 328/2006 and cacv 329 /2006

CACV 328/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 328 of 2006

(on appeal from HCCL NO. 49 of 2004)

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BETWEEN

CACV 329/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 329 of 2006

(on appeal from HCCL NO. 50 of 2004)

______________________

BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 11 December 2006

Date of Decision: 11 December 2006

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D E C I S I O N

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Hon Rogers VP:

1.This is an application for security for costs.  Mr Kerr, who appears on behalf of the Appellant has, very sensibly, conceded that his client is impecunious to the extent that perhaps security should be ordered.

2.Having looked at the papers and the judgment and considered what is involved in the Defendant’s appeal, I consider that the security which should be ordered, which of course should not be the full amount of the costs which would be incurred, should be $175,000.  In my view, that is amply sufficient for the issues that are involved, considering that it is an appeal on a question of law and all the matters will be before the court before the hearing begins and so the appeal should be conducted swiftly and concisely.

3.The order that I make is in the standard form which I normally make, that:

(1)      the Plaintiff do on or before - subject to anything counsel says - 15 January 2007 give security to answer costs in case any shall be awarded, to be paid by the Plaintiff to the Defendant by making lodgement in court of the sum of $175,000 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 be given to the Registrar and to the solicitors for the Defendant (such notice to be given on the same day as the lodgement is made) all proceedings in the said appeal are to be stayed;

(2)      in default of the Plaintiff making such 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 Defendant 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 Plaintiff do pay to the Defendant its costs occasioned by the said appeal such costs to be taxed.

4.Having considered the correspondence which has been exhibited, it is quite clear that the Defendant asked for half a million dollars worth of security for costs.  The Plaintiff, very properly, offered security for costs and they offered it in the sum of $300,000 which was excessively generous in my view.  The parties have thus had to come to court because the Defendant would not accept the offer and they have now only got $175,000.

5.In my view, the costs of this application should be to the Plaintiff to be taxed and paid forthwith.

Mr John Kerr, instructed by Messrs Ho, Tse, Wai & Partners, for the Plaintiff/Appellant

Mr James W Campbell, instructed by Messrs H H Lau & Co., for the Defendant/Respondent