CHINA REGION INSURANCE CO LTD v. LEONG FONG CHENG

CACV 113/2016

[2018] HKCA 233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 113 OF 2016

(ON APPEAL FROM HCA NO 1516 OF 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The history of this appeal has been set out in the judgments of 28 October 2016 and 17 May 2017. Due to the Defendant’s non-compliance with the unless order of 24 October 2016, the appeal was dismissed. Before the dismissal of the appeal, the Defendant had paid into court, pursuant to the court order of 24 October 2016, security for costs in the sum of $167,500 on 17 November 2016.

2.  Since then, the Defendant’s application for leave to appeal to the Court of Final Appeal was dismissed by this Court on 17 May 2017.

3.  The Plaintiff’s costs were taxed by the master and the amount of taxed costs allowed by the master is $215,188.  The certificate of taxation was issued on 7 March 2018.

4.  On 8 March 2018, the Defendant issued a summons asking for payment out of the security of $167,500 to her.  She also filed an affidavit on the same date to support the application.  Basically, she deposed that since the appeal has ended the sum should be returned to her.  She did not say anything in respect of her liability in respect of the taxed costs.

5.  The application is opposed by the Plaintiff.  By an affidavit of 22 March 2018, the solicitor for the Plaintiff recited the history of the matter and stated that the Defendant had not paid the taxed costs.  The Plaintiff sought to have the sum in court paid to its solicitor as partial discharge of the liability of the Defendant in respect of the taxed costs of the appeal. 

6.  The Defendant sent a letter to court by fax on 27 March 2018 and 17 April 2018 claiming that security is different from costs.  She also disputed the merit of the Plaintiff’s case and made some scandalous remarks against the court. 

7.  The application by the Defendant is misconceived.  As explained in the judgment of 28 October 2016, the security for costs is imposed as a safeguard to cover the Plaintiff’s costs in the event of the dismissal of the appeal.

8.  Since the appeal has been dismissed and the costs of the Plaintiff have been taxed, and the Defendant has failed to make any payment pursuant to her obligation to pay the taxed costs, the sum in court should be released to the Plaintiff as partial discharge of her obligation in that respect.

9.  We therefore order that the summons of 8 March 2018 be dismissed.  We also order that the sum in court be released to the Plaintiff’s solicitor as partial discharge of the Defendant’s liability for the taxed costs in this appeal.

10.  We further order the Defendant to pay the Plaintiff the costs of the summons.  We make an order nisi fixing such costs at $7,000, such assessment will become final after 7 days if no party seeks to vary the same.