Mohammad Saleem v. Chung Ying Building Materials Co Ltd

CACV 160/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 2012

(ON APPEAL FROM DCEC 1558 OF 2010)

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BETWEEN

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REASONS FOR DECISION

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1.The applicant obtained judgment in the sum of $853,506 against the 1^st and 2^nd respondents on 22 December 2011. On 13 July 2012 the 2^nd respondent, pursuant to leave granted by a single judge of this Court, lodged an appeal against the judgment. The applicant has demanded the 2^nd respondent to pay the judgment sum to no avail and has received no response from it. He contended that this shows that the 2^nd respondent is impecunious and unable to pay for the judgment and the costs of an unsuccessful appeal. On that basis he applies for security for costs of the appeal in the sum of $218,000.

2.The 2^nd respondent’s argument when it applied for leave to appeal before the Judge below was that the judgment was in error because the notice of claim required under section 24(6) of the Employees’ Compensation Ordinance (Cap. 282) was not served on the 2^nd respondent whom the applicant claims to be his principal contractor.  This point, however, was not pleaded and was only raised by its counsel at the trial at the closing submission and it was, in any event, abandoned.

3.The Court has, of course, a discretion to refuse to order security when the appellant has a strong meritorious appeal.  However, in the light of the stand taken by the 2^nd respondent at the trial and the provision of section 14(3) which states that a notice served on the sub-contractor is deemed to be notice on the principal contractor, I do not regard this argument to be in the 2^nd respondent’s favour for the purpose of this application.  The cases of Mohammad Munir v Yau Kei Tak & Anor (DCEC 251/2006, Judgment dated 26 March 2007) and Ng Siu Kwan v. 吳 錦 華及郭 松 光 (DCEC 1468/2009 Judgment dated 21 April 2011) which upheld a strict compliance of section 24(6) had not referred to section 14(3).

4.Accordingly security for costs was ordered. In my view the appropriate sum should be $180,000.  The orders I made are :

1) $180,000 is to be paid into Court on or before 28 February 2013.

2) Pending payment in, the appeal is stayed.

3) In default of payment in, the appeal is dismissed with costs to the applicant.

4) Costs of this application be in the cause of the appeal.

5.The applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Mr Dennis Law, instructed by Jal. N. Karbhari & Co., assigned by Director of Legal Aid, for the Applicant

2^nd Respondent was not represented and did not appear