Bank of China (Hong Kong) Ltd v. Pau Ting Chung and Others

CACV 268/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 268 OF 2008

(ON APPEAL FROM HCA NO. 9949 OF 2000)

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Before: Hon Rogers VP in Chambers

Date of Hearing: 9 February 2009

Date of Decision: 9 February 2009

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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 brought by the plaintiff against the 3rd defendant.  The grounds upon which the application is made is that the defendant is resident in the Mainland which is outside the jurisdiction, which is correct, and no real challenge to that has been raised.

2.In October, the plaintiff wrote asking for security in the sum of $150,000.00 which was quite a reasonable amount.  The correspondence petered out, each side saying it was the other side’s fault that it petered out.  Be that as it may, this summons was taken out in December.  For reasons which would appear quite justified, the first date in December was not acceptable because it was really a little bit short and if the 3rd defendant was going to challenge the application, then there was not really enough time to prepare the case.  Apparently, the next date that was offered was today which seems to be a little bit too close to the hearing of the appeal but, in that case, it is really the fault on this side of the court that the late date was offered.  Nevertheless, the 3rd defendant has been under notice that security is being sought.

3.Given the situation which has arisen now with the appeal coming on in less than a month, it does seem to me sensible that if security is going to be ordered, it has to be provided a week before the hearing of the appeal and so 25 February, which has been suggested by the plaintiff, would appear to be the appropriate date.  Given that and given the really short notice which the 3rd defendant is now under, despite the fact that he has been aware that security is being sought, it seems to me that it would be appropriate to limit the security being provided to the $150,000.00 which the plaintiff asked for in the first place which, as I said, is a very reasonable amount.

4.So the order that I will make is that:

(1)    the 3rd defendant do, on or before 26 February 2009, give security to answer costs in case any shall be awarded to be paid by the 3rd defendant to the plaintiff, by making lodgment in Court of the sum of $150,000.00 by cash or bankers draft, or by the 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 given to the Registrar and to the Solicitors for the plaintiff (such notice to be given on the same day as the lodgment is made) all proceedings in the said appeal are to be stayed;

(2)    in default of the 3rd defendant making such lodgement 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 plaintiff certifying such default to the Registrar) stand dismissed out of this Court without further order;

(3)    in the event that the appeal is dismissed in the circumstances provided for above, the 3rd defendant do pay to the plaintiff its costs occasioned by the said appeal such costs to be taxed; and

(4)    the costs of this application be costs in the appeal.

Mr Bernard Man, instructed by Messrs Tsang, Chan & Wong, for the Plaintiff/Respondent

Mr Roland Lam, instructed by Messrs Wongs, for the 3rd Defendant/Appellant