Read the full judgment text of CACV 49/2012 on BabelCite. This Court of Appeal judgment was delivered on 7 January 2013 before Kwan JA.
Civil procedure – security for costs of appeal – Order 59 rule 10(5) – 'special circumstances' – impecunious appellant – countervailing factors (merits, set-off, delay) – injunction to restrain trespass and interference with right of way in connection with protests against proposed residential development. The plaintiff developer, Billion Star Development Limited, owned two landlocked parcels within Mei Foo Sun Chuen with the only direct vehicular access being a private road (Broadway South-West bound). After Building Authority approval was obtained for a residential development, residents organised protests in March and April 2011, repeatedly blocking the Access Road. The 8th defendant, Mr Tsang Kin Shing, a well-known social activist, attended a rally on 3 April 2011. Au J granted a final injunction against the 8th and 9th defendants on 10 February 2012 ([2012] 2 HKLRD 85), finding that although the evidence did not show the 8th to 10th defendants had carried out infringing acts, they had evinced an intention to do so. The 8th defendant appealed. Whether special circumstances existed under Order 59 rule 10(5) justifying security for costs of the appeal – held, yes; the 8th defendant was impecunious, not gainfully employed, with his only asset being a jointly-held Chai Wan property subject to Home Ownership Scheme transfer restrictions, making enforcement of any costs order difficult. Whether the three countervailing factors advanced by Mr Martin Lee SC displaced the order – held, no. First, on a preliminary assessment the grounds of appeal (essentially the same as those rejected by Au J, including the constitutional rights defence and the width of the injunction) were not sufficiently meritorious. Second, the untaxed costs awarded in the 8th defendant's favour (estimated at $890,000) were unlikely to set off the plaintiff's much larger costs liability from the substantive hearing (estimated to exceed $4 million). Third, the delay in issuing the summons until mid November 2012, despite an earlier July 2012 letter, was not a sufficient countervailing factor, as the plaintiff had given early notice of its intention to seek security and the 8th defendant could not demonstrate concrete prejudice from the timing. Application granted; security ordered at $450,000 (comprising $100,000 solicitors' costs and $350,000 counsel's fees) to be lodged within 42 days, failing which the appeal stands dismissed; costs of the application to be costs in the appeal.
Legal issues: Whether security for costs of appeal should be ordered against an impecunious appellant
Outcome: Application for security for costs of appeal granted; the 8th defendant ordered to provide security of $450,000 within 42 days, failing which the appeal stands dismissed without further order.
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