Tsui Po Hing and Another v. Sk Kaken Co., Ltd and Another

CACV 167/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 167 OF 2009

(ON APPEAL FROM HCCL NO. 42 OF 2004)

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BETWEEN

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Before:     Hon Tang VP and Lam J in Court

Date of Hearing:     26 March 2010

Date of Judgment:     26 March 2010

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JUDGMENT

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Hon Tang VP:

1.The plaintiffs’ claim against the defendants in HCCL 42/2004 were dismissed with costs on 6 March 2007 by Stone J after trial. The plaintiffs’ appeal from that judgment is CACV 101/2007. By summons dated 4 June 2009, the plaintiffs applied for a stay of execution in respect of a cost order pending the determination of CACV 101/2007. That summons was dismissed by Stone J on 15 June 2009.

2.This is the plaintiffs’ appeal (CACV 167/2009) from Stone J’s decision of 15 June 2009.

3.The notice of appeal asked that the order for costs be stayed pending the determination of their appeal to this court, namely, CACV 101/2007. CACV 101/2007 was dismissed by the Court on 27 November 2009. That being the case, this appeal (CACV 167/2009) has been overtaken by event.

4.However, Mr Tsui Po Hing (“Mr Tsui”) submitted that as the plaintiffs have applied for leave to appeal to the Court of Final Appeal, which application would be heard on 23 April 2010 a stay should nevertheless be granted. But today we are not concerned with a stay pending an intended appeal to the Court of Final Appeal. As I said today’s appeal asked for a stay pending the appeal to this court. That appeal has already been resolved.

5.We were also told by Mr Tsui that the plaintiffs are unable to satisfy the cost order. Mr Tsui submitted that a consequence of a refusal of a stay is that they might be made bankrupt and their intended appeal to the Court of Final Appeal stifled. But even if they were made bankrupt, if their application for leave to appeal to the Court of Final Appeal succeeds, the trustee in bankruptcy might not wish to put a stop to the appeal. So I would not presume that if the plaintiffs had a meritorious appeal, it would be stifled.

6.Mr Tsui also submitted that the Court of Appeal was wrong in dismissing their appeal in CACV 101/2007. That remains to be seen, but, the plain fact is that the appeal has come to an end and that is all that is relevant today.

7.We turn to consider the defendants’ summons dated 4 March 2010 asking that appeal to be struck out. We believe in all the circumstances that the costs relating to that summons should not be borne by the plaintiffs. On the question of costs, we believe that the proper order is that the defendants should have the cost of this appeal. Such cost would not include the cost of their summons of 4 March 2010.

Hon Lam J:

8.I agree.

The 1^st plaintiff, in person, present.

The 2^nd plaintiff, absent.

Mr Bruce K. W. Lau, instructed by Messrs Peter Lau & Co, for the 1^st and 2^nd Defendants.