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CACV 107/2008 & CACV 108/2008
CACV 107/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 107 of 2008
ON APPEAL FROM HCA NO. 1603 OF 2004
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BETWEEN
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TO KIN WAH |
Plaintiff |
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and |
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TO FOOK TIM |
1st Defendant |
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TO KAM CHAU |
2nd Defendant |
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TO KAN CHI |
3rd Defendant |
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CACV 108/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 108 of 2008
(ON APPEAL FROM HCA NO. 509 OF 2002)
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IN THE MATTER OF those funds standing to the credit of the Tsing Wan Kun under HCMP No. 562 of 1992 and HCMP No. 2084 of 1994 |
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BETWEEN
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TO KAN CHI |
Plaintiffs |
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TO FOOK TIM |
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TO KAM CHAU |
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as Managers of T’ong Tsing Wan Kun |
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and |
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TO KIN WAH |
1st Defendant |
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TO YUK LEUNG (an infant suing by |
2nd Defendant |
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his Guardian ad litem, TO KIN WAH, his father) |
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Before: Hon Rogers VP in Chambers
Date of Hearing: 3 November 2008
Date of Decision: 3 November 2008
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D E C I S I O N
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1. This is an application for three persons to be joined as parties to the appeal which is coming up on 10 December, because Mr To Kin-wah is now bankrupt, and also for them to be joined as parties to the action.
2. Quite simply, the Respondents to these two appeals take the view that they have no objection to the joinder, but the Applicants should give undertakings in respect of the costs of the appeals and in respect of the costs of the actions up to now which have been incurred by Mr To Kin-wah, and they also ask for an order that they give an undertaking to provide security in such form as shall be acceptable to the Respondents, failing agreement as shall be determined by the court, in respect of the costs which may become payable to To Kin-wah and themselves with respect to the appeals and the actions.
3. Just dealing with the second undertaking first, that is really not an undertaking which I am prepared to ask anybody to give. If a party wishes to seek security for costs, whether for an appeal or for an action, they may do so; but the security which is ordered is then a fixed amount. The court does not do it in two halves and say, “Well, first half, I am going to order security. Second half, I am going to decide how much.” It decides it all at one go.
4. Secondly, what does this undertaking mean? It is an undertaking, and hence it is enforceable as an injunction, and so if the Applicants fail to produce something which is acceptable to the Respondents or has been determined by the court for some unlimited amount, they are guilty of contempt.
5. That is simply ridiculous. I cannot require an undertaking like that. All one can do is say, “Look, you cannot continue with an appeal unless you pay or give security for a particular amount.”
6. So then we go to the main point about the application. It seems to me that by asking for the two undertakings, what in effect the opposing party, or Respondents to these appeals, are saying is that they are not contesting the suitability - and indeed, that seems to be the argument this morning - they are not contesting as such the suitability of these three persons being joined as parties.
7. This is not a marketplace. The first thing the court has got to decide is whether it is right to allow joinder, and it seems to me an open and shut decision in the light of that. Yes, they are suitable persons to be joined. They should be joined.
8. Now, should they give an undertaking to meet the liability of To Kin-wah in respect of costs of the appeal? Well, the costs of the appeal now will fall on them anyway, because they will be joined as parties to the appeal.
9. As regards joining them as parties to the action, I have my doubts as to whether I should make such an order, but it seems to me that possibly I do, although it might have been better that the actual application were made to the Court of First Instance. But it seems to me a waste of time, because no doubt they will be joined as parties to the action, it having been decided that they should be parties to the appeal. So that is the end of that.
10. So I will make an order that they are joined as parties to the action as well.
11. Now, should they give an undertaking to be responsible for the costs of the action? Well, again, it seems to me an unnecessary undertaking, because when the court comes to make orders for costs, it will make orders for costs in the action, and it is not for me to decide at this stage whether or not they should be liable for any particular type of costs which I know nothing about.
12. Hence, I do not consider that those are undertakings which I should extract from the parties seeking to join into this appeal.
13. I will, therefore, make the order joining the Applicants, and they are To Cheong-lam, To Siu-lam and To Mei-lun, to these appeals, and simply leave it at that.
14. I will reserve the costs to the court hearing the appeal.
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(Anthony Rogers)
Vice-President |
Mr Jason Wong, instructed by Messrs Littlewoods, for the Applicants
Mr Colin Wright and Ms Shannon Leung, instructed by Messrs Cheung & Choy, for the 1st, 2nd and 3rd Defendants in HCA 1603/2004, and the Plaintiffs in HCMP 509/2002/Respondents
The Official Receiver (attendance excused)
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