Wong Yeung on and Another v. Parkmost Ltd

CACV 383/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.383 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:  23 April 2009

Date of Decision:  23 April 2009

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DECISION

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1.The plaintiff, Parkmost Ltd (“Parkmost”) is the registered owner of a block of building in Yik Yam Street, Happy Valley. The 1^st defendant (the deceased) was a tenant in one of the flats in the building (“the flat”). The 2^nd defendant (Wong Yeung On), the son of the deceased, stays in the flat as the beneficiary of his late father’s estate. (The 1^st and 2^nd defendants are referred to as the defendants)

2.Parkmost applied for possession of the flat. The defendants counterclaimed for a declaration on the ground of adverse possession.

3.On 28 June 2007, Master Hui dismissed the defendants’ application for summary judgment on the counterclaim and struck out the counterclaim for adverse possession. Deputy Judge L Chan dismissed the defendant’s’ appeal on 16 January 2008. The defendants further appealed to the Court of Appeal. The appeal was dismissed without a formal hearing because the defendants failed to comply with an order for security for costs.

4.On 4 March 2008, Master Hui granted summary judgment in favour of Parkmost for possession against the defendants. Deputy Judge L Chan dismissed their appeal on 1 December 2008. The defendants further appeal against Deputy Judge L Chan’s decision.

5.By a summons dated 27 March 2009, Parkmost applies for security for costs of the appeal against the defendants. This is the summons that we are concerned with.

6.Order 59 rule 10(5) gives the court the power to order security of costs against an appellant where there are special circumstances rendering it just to do so.

7.The established categories of “special circumstances” include cases where the appellant, through insolvency or impecuniosity, will be unable to pay the costs of the appeal when it fails, or where the respondent is likely to encounter delay or be put to undue expenses in enforcing any costs order against the appellant.

8.I have considered the background of the case. Clearly it is a case where Parkmost will encounter delay and be put to undue expenses and delay in enforcing any costs order against the defendants. It is not disputed that all the costs orders made against the defendants remain unsatisfied although the defendants claim that they are able and willing to meet the costs orders.

9.I have also considered the defendants’ proposed grounds of appeal. It is not necessary to express any definite view on the issues, but I am not satisfied that there is sufficient reason to exercise my discretion not to order the defendants to furnish security for Parkmost’s costs of the appeal.

10.The issues in the claim, as revealed by the pleadings, are identical to those on the counterclaim, which had been struck out. The defendants’ allegations set out in their affirmation that they had been cheated of money is not a valid reason for resisting Parkmost’s claim for possession of the flat.

11.The defendants’ admission that they are willing and able to meet the costs orders means that an order for security of costs will not stifle their appeal or in any way adversely affect their interests.

12.The appeal, if proceed, will be short and simple and having examined Parkmost’s skeleton bill of costs, I am satisfied that a reasonable sum as security for the costs of the appeal is $200,000.

13.I therefore make the following orders:

1. The defendants are to furnish security for Parkmost’s costs of the appeal in the sum of $200,000 by making payment into court within 28 days of the service of this order;

2. Until the defendants provide the security for costs aforesaid, all proceedings in the appeal will be stayed;

3. If the defendants fail to provide the security for costs within 28 days, their appeal will be dismissed without further order with costs of the appeal to Parkmost to be taxed if not agreed; and

4. If the defendants comply with the order for security of costs, costs of this application to be in the cause of the appeal.

Mr Kevin Nie Kin Kwok instructed by Messrs Jesse H Y Kwok & Company for the Plaintiff.

1^st and 2^nd Defendants:  In person.