Intelligent House Ltd v. Chan Tung Shing and Others
Read the full judgment text of CACV 190/2008 on BabelCite. This Court of Appeal judgment was delivered on 19 January 2009 before Rogers VP.
Civil procedure – security for costs – appeal – amount of security – London counsel fees – reasonable estimate – local counsel – building redevelopment – Lands Tribunal sale order – 13th Respondent purchased unit at late stage knowing of redevelopment plans by Applicant who held 92.31% – 13th Respondent invested approximately $2.5 million, about 2.7 times the apartment value – Lands Tribunal ordered sale of building after 10-day hearing – 13th Respondent's share of proceeds (slightly under $2 million) retained by Applicant's solicitors pending payment of costs – Application for security for costs in appeal – Court holds that security must be assessed at a reasonable amount based on competent local counsel, not the higher amount needed to cover London counsel – Appropriate amount estimated generously at $1 million – 13th Respondent given until 16 February 2009 to provide security by lodgment or bank guarantee – In default, appeal stands dismissed without further order – Costs of application to be costs in the Appeal
Legal issues: Appropriate amount of security for costs where London counsel is sought
Outcome: Security for costs ordered against the 13th Respondent in the sum of $1,000,000, to be provided by lodgment in court or bank guarantee by 16 February 2009; in default, the appeal stands dismissed without further order.
Cited by 28 cases
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CACV 190/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 190 OF 2008 (ON APPEAL FROM LDCS NO. 11000 OF 2006) ----------------------
---------------------- Before: Hon Rogers VP in Chambers Date of Hearing: 19 January 2009 Date of Decision: 19 January 2009
1.This is an application for security for costs. The litigation is somewhat odd. Much of the history has been set out in reasons for judgment of Tang VP handed down on 27 August 2008. 2.It would appear that the 13th Respondent in this case bought a unit at a very late stage, when it was well aware that the particular premises were to be redeveloped by the Applicant who had 92.31 per cent. The 13th Respondent, having invested some $2½ million into the venture of buying this small part of the building, which apparently was about 2.7 times the value of that apartment, then resisted the application in the Lands Tribunal, a matter which went on for some 10 days. 3.As a result, the Lands Tribunal ordered the sale of the building. The 13th Respondent’s share of the proceeds was slightly under $2 million. That has been retained by the Applicant’s solicitors under an order of the court on the basis that the costs before the Lands Tribunal have not been paid. There is an application for a stay which came before the Vice President in August. He set aside the stay which had been ordered by the Lands Tribunal, and hence the building was sold. 4.Quite what the 13th Respondent is likely to obtain out of any appeal other than a decision on the law, which apparently is arguable rather than anything else, and perhaps a reversal of the costs order, I do not know. Nevertheless, applying the normal principles, the 13th Respondent is a $1 company and has seemingly no other assets. 5.This application is put on the basis that the Applicant will be employing London counsel. I have no comment as to that. I am well aware that the London counsel is a very eminent counsel and no doubt entitled to charge the fees which are being sought. However, I have to look upon this as a matter of security for costs in a reasonable amount. What I have to do is to decide whether it would seemingly be possible for the Applicant to employ a local counsel and what a likely rate would be. In my view, I would be generous in estimating the total cost of an appeal like this at $1 million on the basis of perfectly competent counsel undertaking it. As I say, that is no reflection on the fees which are being sought in respect of the London counsel. 6.So what I propose to do is to make an order in the usual form, and that is that:
Mr Kenneth Wong, of Messrs Woo, Kwan, Lee & Lo, for the Applicant/Respondent Mr John Hui, instructed by Messrs Wong Poon Chan Law & Co., for the 13th Respondent/Appellant |