Wong Yeung on v. Parkmost Ltd

CACV 53/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CIVIL APPEAL NO. 53 OF 2008 

(ON APPEAL FROM HCA NO. 1193 OF 2006)

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Before:  Hon Yeung JA in Chambers (Open to Public)

Date of Hearing:  11 June 2008

Date of Decision:  11 June 2008

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DECISION

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1.The appellant, Wong Yeung On, in his personally capacity and also as the personal representative of his late father (“hereinafter referred to as the appellants”) sought summary judgment on their counterclaim for adverse possession against the respondent, Parkmost Limited.

2.Master KH Hui dismissed the appellants’ application and struck out their claim for adverse possession with costs. The appellants appealed against the order of Master Hui, and on 16 January 2008, Deputy Judge L Chan dismissed their appeal with costs.

3.On 15 January 2008, the appellants filed their Notice of Appeal seeking to set aside Deputy Judge L Chan’s judgment.

4.The respondent now applies for security of costs of the appeal under Order 59 Rule 10(5) of the Rule of the High Court.

5.The respondent points out that none of the costs order made against the appellants had been settled and that there is no indication that the appellant is being employed or has any income. The respondent suggests that it will be likely to encounter undue delay or be put to undue expense in enforcing any order for costs in respect of the appeal against the appellants.

6.In August 1999, the respondent became the registered owner of N0 17 & 19 Yim Yam Street Happy Valley (“the building”), a pre-war building with eight residential units. The appellants then occupied one of the units (“the premises”).

7.Between August 1999 and January 2005, the previous owner of the building, Mr Chan Kwok Yun, as agent of the respondent, collected the monthly rent from the appellants. Beginning in January 2005 and until February 2006 after his parents passed away, the appellant paid the monthly rent by cheque sent to the respondent’s registered office.

8.In or about March 2006, the respondent commenced proceedings in the Lands Tribunal, seeking possession of the premises against the appellants.

9.The appellants in their Notice of Opposition, claimed to have adverse possession of the premises.

10.The appellants’ claim was rejected both by Master Hui and Deputy Judge L Chan, which decisions led to the appellants’ appeal.

11.In the judgment of Deputy Judge L Chan, the appellants’ case was carefully analysed.

12.It may not be necessary, for the purpose of the present application, to examine too closely the merits of the case. However, it is clear that the appellants’ claim is shadowy, to say the least.

13.The appellant’s vague suggestion of a deception was not made out and such a suggestion, in any event, is not relevant. Whether the appellant was an occupier or a tenant also has no bearing to the issue. The appellant’s admission that he had been paying rent would certainly defeat his claim of adverse possession.

14.Order 59 Rule (10)(5) of the Rule of the High Court empowers the Court of Appeal to order security for the costs of the appeal in special circumstances. It is recognized that one of such special circumstances is when 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.

15.The detailed matters set out in the appellant’s affirmation relating to the background of the respondent and its relationship with Mr Chan Kwok Yun are not relevant to the issue that needs to be resolved in this application.

16.On the allegation of the respondent, namely that the appellant is not employed and appears not have any income, and that none of the costs order made against the appellants has been satisfied, the respondent is likely to encounter undue delay and be put to undue expense in enforcing any costs order.

17.In the light of the background of the case, I can find no reason for invoking the residual discretion to exempt the appellants to provide security for costs of the appeal, as it is fair that they should do so.

18.I therefore accede to the respondent’s request and set the amount of the security for costs at $250,000.00

19.I make the following order:

1. The appellants do provide security for costs of the appeal in the sum of $250,000 by cash payment into court within 21 days;

2. Until the appellants furnish the security for costs aforesaid, their appeal will be stayed;

3. If the appellants fail to provide the security for costs, their appeal will be dismissed without further order with costs of the appeal, including the costs of this application, to be taxed if not agreed; and

4. If the appellants provide the security for costs, costs of this application to be in the cause of the appeal.

Appellants: In person.

Mr Chan Pat Lunn instructed by Messrs Jessie H.Y. Kwok & Co for the Respondent.