Koon Tung Ying v. National Mutual Insurance Co. (Bermuda) Ltd. and Another
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CACV000183/2000 CACV 183/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 183 OF 2000 (ON APPEAL FROM HCA NO. 19087 OF 1999)
Coram: Hon Rogers VP, Le Pichon JA in Court Date of Hearing: 5 December 2000 Date of Judgment: 5 December 2000 ______________________ J U D G M E N T ______________________ Hon Rogers VP: 1. This is an application under Order 59 Rule 14(12) by way of appeal from a decision of Mr Justice Mayo VP, which he gave on 7 July 2000. The application was an application by the defendants for security for costs for the appeal being made by the plaintiff. 2. The appeal by the plaintiff is against an order of Madam Justice Yuen, which was made on 8 May 2000. The application before Madam Justice Yuen had been an application to strike out the plaintiff's claim. 3. There is a great deal of history to this case. The plaintiff's daughter had taken out a life insurance policy. Shortly before her death, the beneficiary of that policy had been changed to a Mr Lau. On the form in which the name of the beneficiary was changed, it named Mr Lau as the deceased's cousin. 4. After the deceased had died in April 1994, the plaintiff challenged the entitlement of Mr Lau to the proceeds of the insurance policy and as a result the insurance company, which is now the 1st defendant in these proceedings, commenced interpleader proceedings in December 1994. Those interpleader proceedings were heard by Mr Justice Hartmann, who was then a deputy judge. There was then an appeal to the Court of Appeal and further appeal to the Court of Final Appeal. On each stage of those proceedings, the courts were well aware of the fact that Mr Lau had been described as the deceased's cousin but he was not her cousin. Any allegation of conspiracy between the insurance agent and Mr Lau was rejected by all the courts. 5. The courts have expressed sympathy for the plaintiff. Undoubtedly she would be distressed by her daughter's death. Furthermore, the plaintiff may find it difficult to understand why the proceeds of the insurance policy were given to Mr Lau. Nevertheless, the clear findings of the courts were that, despite the naming of Mr Lau as the deceased's cousin, the change of beneficiary was valid. 6. These proceedings were commenced in December of last year. As I understand Madam Koon's son, Mr Chow, who has argued her case on her behalf, the plaintiff seeks to put her case as an action of negligence against the insurance company. The claim against the insurance company is that, because of its alleged negligence, it has caused Madam Koon to incur the costs in the last case. The plaintiff founds this alleged negligence on two matters. 7. The first is the reference to Mr Lau as the deceased's cousin, and the second is the fact that Mr Lau's name in the change of beneficiary form was written by himself and not by the agent. 8. Without saying more, because I do not wish to prejudice the appeal, I would say this much, that there are clearly a number of very fundamental difficulties in the plaintiff's way in succeeding in the appeal. This is beside the fact that the plaintiff's case now appears to be very different from that which was argued before Madam Justice Yuen. 9. In the first place, the questions of the plaintiff's liability to costs in relation to the first case should, it seems to me, have been argued at the conclusion of that case and they were part and parcel of that case. In accordance with established principles, the plaintiff should not now be permitted to re-litigate questions of costs which arose in the last case. 10. In the second place, the plaintiff seeks to put her case on the basis of negligence; this allegation of negligence is primarily against the 1st defendant and also, presumably, against the 2nd defendant. In order to found a case for negligence, it has to be established that the particular defendant owes the plaintiff a duty of care. I cannot see how the defendants owe the plaintiff in this instance any duty of care. 11. All this, is before one comes to the factual issues - the question of the relationship of Mr Lau to the deceased was gone into at the trial, and all courts were fully aware that Mr Lau was not the deceased's cousin and the fact that Mr Lau may have written his name on the change of beneficiary form - in the light of the decisions of the court and, in particular, the Court of Final Appeal, can it seems to me be of no avail to the plaintiff. 12. In my view, the plaintiff's chances of success on the appeal are regrettably negligible. 13. In the plaintiff's founding affidavit for this application the plaintiff herself says that she is impecunious and says that the most she could afford would be HK$30,000 for security for costs. However, Mr Justice Mayo has held that the figure of HK$174,000 is a reasonable amount for payment into court as security for costs for this appeal. I regret that that seems to me to be a correct estimate and I can see no grounds for disturbing that. 14. In the circumstances, I consider that this application must be refused and the order for security for costs confirmed. Hon Le Pichon JA : 15. I agree with the judgment given by the Vice-President and have nothing to add.
Representation: Koon Tung Ying, Plaintiff/Appellant, in person Mr Chow Tak Sing, Simon, son of Plaintiff/Appellant, in person Mrs Glenys Newall, instructed by Messrs Herbert Smith, for Defendants/Respondents |