Right Star Investment Co Ltd v. Grand Palace Ltd

cacv 356/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 356 of 2007

(on appeal from HCCW NO. 908 of 2005)

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BETWEEN

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Before: Hon Rogers VP in Chambers

Date of Hearing: 17 March 2008

Date of Decision: 17 March 2008

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D E C I S I O N

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1.This is an application for security for costs in respect of a company which has been wound-up.

2.I will say two things about this application at the start.  In the first place, the court has been given a number of bundles on this application for security for costs which are totally unnecessary.  Included with them, is a 30-page submission from the Respondent.  I have not read that.  I do not intend to read 30-page written submissions.  I would make it clear, and I would make it clear for not the first time, that skeleton arguments and written submissions are quite different.  In this court, this court requires skeleton arguments, and skeleton arguments should be skeleton arguments and nothing else.  They should be headings.  They should direct the court’s attention to what is going to be argued.  They need not be more than a very few pages long.  They should not be written submissions.  Written submissions are just confusing for the court.  They are of no assistance whatsoever and they will not be read.

3.In the second place, in a number of documents now filed in court the parties’ order in the heading has been reversed.  That should not be the case.  The Petitioner should appear first and the Respondent second.  I do not know why that has happened.  It must cease from now.

4.As regards the petition, the petition was based on a failure to pay the sums which were due.  The matter was heard by the judge.  The Respondent says the judge failed to understand various documents which were in Chinese.  That is of very little assistance to me because I certainly could not begin to correct the judge on the implication of a document which is in Chinese.  Those arguments will have to be addressed to other people.

5.As regards the other argument, that this was due to the wrongful act of the Petitioner, and Mr Hui in particular, again the judge has had that before him.  He has made up his mind.  In my view, what is proposed to be argued by the Respondents on this appeal is that the judge has made errors of fact.  Questions of fact are difficult in this court, to say the least, and in my view this is a case where security should be given.

6.The respondent to this appeal, the Petitioner, has asked that the order should be made that the security be provided by persons or companies who are not the respondent to the petition.  In my view, having seen the authorities, that is the proper order.

7.The order that I propose to make is that the Appellant do, on or before 14 April, arrange that security be given to answer costs in case any shall be awarded, to be paid to the Petitioner by making lodgment in court of the sum of $250,000 by cash or banker’s draft or by provision of a bank guarantee of the like amount which guarantee shall have been approved by the Registrar.  And until such lodgment be made and notice thereof be given to the Registrar and to the solicitors for the Petitioner, such notice to be given on the same day as the lodgment is made, all proceedings in the said appeal be stayed.

8.In default of such lodgment 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 Petitioner certifying such default to the Registrar, stand dismissed out of this court without further order.

9.In the event that the appeal is dismissed in the circumstances provided for above, the Petitioner be at liberty to apply to the court for an order in respect of the costs of this appeal.  The costs of this application be costs in the appeal.

Mr Jimmie Ho Chee-choi, instructed by Messrs C K Mok & Co., for the Petitioner/Respondent

Mr Kelvin Leung, instructed by Messrs M C A Lai & Co., for the Respondent/Appellant