Liang Jun Xian v. Tsui Hin Chi
Read the full judgment text of CACV 88/2008 on BabelCite. This Court of Appeal judgment was delivered on 26 June 2008.
1. The defendant applied for security for costs against the plaintiff who is a non Hong Kong resident. He also applied for summary judgment on his counterclaim against the plaintiff.
Cites 1 case
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CACV 88/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 88 OF 2008 (ON APPEAL FROM HIGH COURT ACTION NO. 2288 OF 2007) ----------------------
---------------------- Before : Hon Cheung JA in Chambers Date of Hearing : 26 June 2008 Date of Decision : 26 June 2008 Date of Reasons for Decision : 2 July 2008 ------------------------------------------ REASONS FOR DECISION ----------------------------------------- The orders of Fung J 1.The defendant applied for security for costs against the plaintiff who is a non Hong Kong resident. He also applied for summary judgment on his counterclaim against the plaintiff. 2.Fung J, among other things, made the following orders :
The appeal 3.The plaintiff lodged an appeal against the orders. The defendant applied for securities for costs of the plaintiff’s appeal on the ground that the plaintiff is a non-resident. Form of order 4.The wording of Fung J’s sealed order is problematic. First, the plaintiff had never applied for any judgment before Fung J concerning her claim on the ownership of the shares. Hence (as accepted by Mr. Ng, counsel for the defendant) there should not be an order on this. Second, the relief sought by the defendant was in the form of a declaration. Hence (as was also accepted by Mr. Ng) the proper order should be in the form of a declaration. The order should be amended. Matter of discretion 5.That the Court of Appeal may order security for costs against an appellate who is a non-resident is well recognized. This belongs to the special circumstances category. That the plaintiff in this appeal is a non-resident is not disputed. However, the real issue is whether, having considered the merits of the appeal, the discretion should be exercised in favour of the defendant. Merits of the appeal Summary judgment 6.The plaintiff disputed the nature of the shares transferred to the defendant. She also disputed the quantity of the shares that had been transferred. Her case has always been that she had only transferred 70% of the shares in CIGIF to the defendant first by 40% and later 30%. She had never transferred another 30% making a total of 100% of the shares to him. Since CIGIF owns 60% of the ‘Land Company’, the plaintiff’s admission in documents (based on the defendant’s 70% in CIGIF) that the defendant has 42% in the Land Company is consistent with her case. 7.The defendant’s case is that he acquired 100% of CIGIF and transferred 30% to Mr. Mok Wah Pui leaving 70% in his own right. He claimed that the plaintiff’s admission that he was holding 42% in the Land Company supported his application for summary judgment that there should be a declaration that he is the legal and beneficial owner of 70% of the CIGIF shares. 8.This, however, overlooks one important point. If the plaintiff only admits that the defendant has only 70% of the shares and if the defendant had already transferred 30% from this 70% to Mr. Mok, then clearly there is a triable issue on whether he still held 70% of the shares at the time of the summary judgment application. There was no indication that the plaintiff was aware the defendant had transferred 30% of his shares to Mr. Mok. 9.On this basis my view is that the plaintiff has a reasonable prospect of success on appeal on the summary judgment obtained by the defendant irrespective of arguments on the nature of the transfer. Security for costs of the trial 10.In respect of the plaintiff’s appeal against the order requiring her to furnish $600,000 as security for costs of the trial, the claim and counterclaim touched on the same subject matter. The plaintiff happened to sue first. Had the defendant commenced proceedings first, he could not have asked for security for costs against the plaintiff. The argument that the defendant may abandon his other claims against the plaintiff is on the basis that the summary judgment can be sustained on appeal. As the matter now stands there may well be a trial on this particular relief as well. Hence there is a reasonable prospect of success on the appeal in relation to security for costs for the trial. Conclusion 11.Considering all the circumstances, I decided against ordering the plaintiff to furnish security for costs of the appeal. 12.Accordingly I dismissed the defendant’s application. I made no order as to costs.
Mr. Lawrence Ng, instructed by M/s ONC Lawyers, for the Defendant Plaintiff, in person, present |
Cases cited in this judgment
Further hearings and rulings under CACV 88/2008