Wong Wing Ho v. Chong Lai Wah and Another

CACV 212/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2007

(ON APPEAL FROM HCA NO. 1948 OF 2005)

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BETWEEN

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Before: Hon Tang VP in Chambers

Date of Hearing : 15 November 2007

Date of Decision : 20 November 2007

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DECISION

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1.This is the 1^st and 2^nd defendants’ application for security for costs.

2.The application is supported by an affidavit of the 1^st defendant filed on 24 October 2007.

3.In that affidavit, the 1^st defendant said that she had been duly authorized by the 2^nd defendant to make the affidavit on the 2^nd defendant’s behalf as well.

4.By a letter dated 8 November 2007 and addressed to the court, the 2^nd defendant claimed that he had not authorized the 1^st defendant to make the said affidavit on his behalf.

5.I was informed, however, by Ms Lorinda Lau, who appeared on behalf of the 1^st and 2^nd defendants, that her instructing solicitors were still on record acting for both the 1^st and 2^nd defendants.

6.Mr Chung Boey, appearing on behalf of the plaintiff, submitted that having regard to the letter of the 8 November 2007, I should disregard the affidavit.

7.I do not think that is right.

8.Even if the 2^nd defendant had not authorized the 1^st defendant to make the affidavit on his behalf, it was nevertheless the affidavit of the 1^st defendant.  As I have said, Ms Lau informed me that the solicitors are still on record as acting for the 1^st and 2^nd defendants, and I should proceed on that basis.  Further, even if the 2^nd defendant was not a party to the application, the 1^st defendant’s costs in the appeal may still be the subject matter of an order for security for costs.

9.The plaintiff’s appeal is against the order striking out his statement of claim and dismissing his claim for defamation by Chu J.  His appeal has been fixed to be heard on 29 January 2008.

10.By way of special circumstances supporting the application, Ms Lau has referred me to the Hong Kong Civil Procedure, Vol. 1 at 59/10/30, where it is said that:

“The Court of Appeal will order security for costs upon proof (or in some cases upon a presumption) that the respondent will be likely to encounter undue delay or be put to undue expense in enforcing any order for costs in respect of the appeal. (A Bank v B, unreported, 1996).”

11.Ms Lau relied on the fact that costs in the courts below, both before the Master and the learned judge, have not yet been paid by the plaintiff.  So far as the costs before the Master are concerned, they are still being taxed.  As I understand the position, taxation had not yet begun in relation to the costs before the learned judge, although an attempt to agree costs inferred before Chu J was unsuccessful.

12.Ms Lau submitted that the defendants would be likely to encounter undue delay or be put to expense in informing any order for costs in respect of the appeal.

13.As for the means of the plaintiff, the only evidence is that he is the director of a company which owns a unit as well as a car parking space in the Century Industrial Centre.  According to the Company Registry record, the plaintiff is not a shareholder in that company.

14.The plaintiff in his affirmation opposing the application rightly pointed out that the burden is on the defendants to establish special circumstances warranting the ordering of security for costs.

15.The plaintiff’s claim is for defamation said to be contained in 2 letters, written in the name of the incorporated owners.  I think it is clear that feelings had run high among some of the “owners” of the Century Industrial Centre.

16.Ms Lau also submitted that the appeal lacks merit.  I would not go so far as to say, however, that the appeal amounts to an abuse of the process of the court.

17.But experience tells one that disputes involving members of incorporated owners are likely to be motivated by strong personal feelings.  So in the circumstances of this case, although not without some initial hesitation, I have come to the conclusion that looking at the matter with common sense, this is a case where the defendants will indeed encounter undue delay or be put to expense in enforcing costs orders against the plaintiff.

Quantum.

18.The amount sought is $320,000.  It is supported by a skeleton bill.  Mr Boey has correctly pointed out that the skeleton bill has included many items of costs which were incurred before the Master as well as before the learned judge.  It was also prepared on the basis that senior counsel as well as junior counsel should be instructed.

19.Mr Boey suggested $100,000.  That is too low.  I believe that the proper amount of security to be $150,000 and I so order.

20.I make the order that the plaintiff within 14 days from today gives security in the sum of $150,000 for the 1^st and 2^nd defendants’ costs in the appeal, and that until such security is provided, the appeal be stayed.  In default of such security being given within the time aforesaid, the plaintiffs’ appeal do stand dismissed without further order with costs to be paid by the plaintiff to the 1^st and 2^nd defendants.  Costs of this application be in the cause of the appeal.

Ms Lorinda Lau, instructed by Messrs Darin Leung & Partners, for the 1^st and 2^nd Defendants.

Mr Chung Boey, instructed by Messrs Hampton, Winter & Glynn, for the Plaintiff.