Kwan Chui Kwok Ying and Another v. Tao Wai Chun and Others

CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM COURT OF FIRST INSTANCE

HCMP NO. 2996 OF 1990)

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BETWEEN

THIRD PARTY PROCEEDINGS

BETWEEN

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Before : Hon Cheung, Yeung JJA and Chung J in Court

Date of 15^th Defendant’s written submission : 14 January 2008

Date of 6^th Defendant’s written submission : 23 January 2008

Date of Decision : 31 January 2008

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.The 6^th defendant’s appeal was dismissed by this Court for lack of jurisdiction.

2.The 6^th defendant had previously pursuant to an order dated 9 October 2007 paid into Court $400,000 as security for costs of the appeal.  The 15^th defendant asked for this sum to be retained pending payment out to him to satisfy his costs of the appeal when taxed. 

3.The 6^th defendant opposed this and asked for the sum to be paid out to him.  He submitted that as the appeal was not properly constituted because leave to appeal was not obtained the order for security should not have been made in the first place.  It was therefore an invalid order and the money paid under an invalid order must be returned to him.

4.While we agree that the 15^th defendant should earlier have applied to strike out the notice of appeal instead of applying for security for costs of the appeal, the order that was made was nonetheless a valid order and should be given effect.  The 6^th defendant had not appealed against that order and the time to appeal had long passed.  On this basis the money in Court should and can be used to satisfy the 15^th defendant’s costs of the appeal.

5.We would order that the $400,000 is to remain in Court until the final determination of the taxation of the 15^th defendant’s costs of the appeal.  It will then be paid out to the 15^th defendant in satisfaction of his taxed costs.  The balance, if any, is to be paid out to the 6^th defendant.

The 6^th defendant, in person

Messrs Huen & Partners, for the 15^th defendant