PANLEAD DEVELOPMENT LTD. v. CHUNG YEE FONG HELEN

CACV 142/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 142 OF 1998

(ON APPEAL FROM HCA NO. A 6853 OF 1992)

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J U D G M E N T

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Liu, J.A.:

1. The plaintiff seeks security for the costs of the appeal and Mr Lam of counsel appears to support its application. Principally, the application is sought to be argued on two grounds: first, the appeal is an abuse of process; secondly, the plaintiff will not likely recover the costs of the defendant's appeal if she should fail.

2. In the course of counsel's submission, merits of the appeal are broadly canvassed. It is argued that on the award of interests on and costs incidental to the undisputed $200,000 deposit which was conceded by the defendant, the decision was largely grounded on discretion. There was also a consequential claim by the plaintiff for damages to the extent of $190,000, which, so counsel argues, was a matter of sheer calculation. The court is reminded of the rare occasions on which the Court of Appeal may justly interfere with the exercise of discretion by a trial judge.

3. In an appeal as of right such as this, it is difficult to pin an allegation of abuse of court process on the defendant's attempt. After all, leave to appeal against costs has been granted by the trial judge, albeit on a belated application. The first ground therefore fails.

4. The defendant has paid into court the $200,000 which was not disputed and she has belatedly even paid the $190,000 damages. Out of the defendant's feared inability to settle her liabilities, what is outstanding? Only interests and costs! Mr Lam seeks to rely heavily on what is described as the attitude of the defendant. Evidently, the relationship between the parties has not been amicable and the so called attitude of one party or another can be of very little significance, even before the recent payment of the $190,000 damages. There would seem to be insufficient justification for the plaintiff to maintain that the defendant is unlikely to meet costs of a losing appeal. The defendant is still an officer of this court, if not also the principal of Messrs. Helen Chung & Company. No attempt has been made by the plaintiff to levy execution on the defendant. This court has not been told of any effort by or on behalf of the plaintiff to inquire as to whether the defendant has any tangible assets for satisfying costs of the appeal which she now prosecutes. The defendant, in a draft affidavit which she undertakes to file, discloses a property in her name worth some $3 m. The plaintiff has sought to serve a bankrupt notice. Procedure seems to have been wantonly taken advantage of to further the interests of each. In all the circumstances, it really becomes ill from the plaintiff to try to make much out of "attitude". I am not, at all, persuaded that the application is a proper application. I refuse it and subject to what Mr Lam has to say, I propose to order costs to the defendant on a common fund basis. (Further submission made) Application dismissed with costs on a common fund basis.