Yu Kin Yuet v. Destiny Engineering Company Operated By Destiny Group Ltd

CACV 275/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 275 OF 2013

(ON APPEAL FROM DCEC NO. 790 OF 2012)

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BETWEEN

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1.This is an application for security for costs of an appeal to be heard on 2 July 2014. The party appealing is a company and its solicitors have ceased to act for it by an order made on 17 April 2014. It is the respondent in an application for employees’ compensation. It has not appeared at the hearing.

2.Judgment was given by HH Judge Wilson Chan on 27 November 2013 after a three-day trial.  The judge found in favour of the applicant that he was an employee of the respondent at the time of the accident and that the personal injury by accident arose out of and in the course of the employment.  Compensation was assessed at $291,590.  Costs were awarded in favour of the applicant.

3.The respondent filed a Notice of Appeal against the judgment on 24 December 2013 to challenge the finding of fact that it was the employer of the applicant.  According to the grounds of appeal, it would attack the findings made regarding the credibility of the witnesses and the weight that should be attached to some of the documentary evidence.

4.I am satisfied on the evidence that special circumstances are established for security to be ordered for this appeal.

5.After judgment was handed down, despite repeated demands, the respondent has not paid the compensation awarded to the applicant.  On 31 March 2014, the applicant’s solicitors served a demand for the judgment debt on the respondent pursuant to section 178(1)(a) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32.

6.Costs of the proceedings awarded in the applicant’s favour have not been taxed.  It is estimated that taxed costs would not be less than $450,000.

7.The respondent’s only answer to the demands for payment was on 30 December 2013, asking the applicant’s solicitors to withhold enforcement action pending the outcome of the appeal.  It has not filed any evidence pursuant to the court’s directions, to answer the applicant’s assertion that it does not have assets within Hong Kong to meet the applicant’s costs in the event of the appeal being unsuccessful.

8.I am satisfied that the applicant will be put to difficulty and expense and will encounter undue delay in enforcing a costs order in its favour in this appeal.

9.I have considered the grounds of appeal and do not think there are sufficient merits to militate against the exercise of discretion to order security on appeal where special circumstances have been made out by the applicant.

10.The applicant’s draft bill of costs is for $282,312.  Its counsel submitted that $220,000 would be a reasonable sum to be ordered as security.  I think it appropriate to award security of $200,000, made up of solicitors’ costs of $80,000 and counsel’s fees of $120,000, giving the respondent 28 days to pay the said sum into court.

11.I have made an order in terms of the draft submitted to the court as amended.

Mr Dennis Law, instructed by Patrick Mak & Tse, assigned by Director of Legal Aid, for the Applicant (Respondent)

The Respondent (Appellant), in person (absent)