DBS BANK (HONG KONG) LTD v. YUE LI (HK) ENGINEERING LTD AND OTHERS

CACV 207/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 207 OF 2014

(ON APPEAL FROM HCMP NO. 165 OF 2014)

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

1.  On 16 April 2015, Barma JA made an order of security for costs in this appeal. By that order, the 2^nd Defendant as appellant in this appeal was required to pay into court the sum of $330,000 on or before 18 May 2015 as security for costs of the Plaintiff in the appeal.

2.  There was no appeal against that order.  The time for appealing (pursuant to Order 59 Rule 14(12) of the Rules of the High Court) expired on 26 April 2015. 

3.  The 2^nd Defendant did not pay the security for costs in accordance with that order.  As a result, the appeal was dismissed without further order pursuant to paragraph 3 of the order of Barma JA.

4.  However, on 18 May 2015, Mr Kwan Hin Kee took out a summons on behalf of the 2^nd Defendant seeking a stay of the order of 16 April 2015.  According to the record of the Registry, the summons was filed at 5:12 pm on 18 May 2015. 

5.  There was no explanation from Mr Kwan as to why he did not take out the summons earlier.  A summons seeking a stay does not operate as a stay.  Until the court actually makes an order for stay, the order of Barma JA continues to have effect.  As Mr Kwan chose to file an application for stay at the last minute, he (and the 2^nd Defendant) only has himself to blame as the court has no opportunity to consider whether any interim stay should be granted before the dismissal of the appeal.    By the time the summons came to the attention of this court, it was 20 May 2015 and the appeal had already been dismissed.

6.  On 20 May, this court drew attention to the dismissal of the appeal and gave directions for paper disposal of the summons of 18 May 2015.

7.  The Plaintiff lodged submissions on 3 June opposing the summons.  However, the 2^nd Defendant (whether through Mr Kwan or otherwise) did not lodge any submission in reply.  Time for the lodging of submissions in reply expired on 10 June 2015.

8.  Having read the submissions and the summons together with the Affirmation of Mr Kwan of 18 May 2015, we are of the view that the summons should be dismissed.

9.  Mr Kwan sought a stay on the basis that the 2^nd Defendant would apply to pay the judgment debt in HCMP 165 of 2014 by instalments.  According to the submissions of the Plaintiff, the 2^nd Defendant has not made such an application up to the date of the submissions. 

10.  In any event, the application for payment of that judgment debt by instalment could not have any relevance to the order of security for costs in respect of the appeal.  If the 2^nd Defendant accepted liability in respect of the judgment debt and made proposal for payment by instalment, it could not afford any ground for allowing it to pursue the appeal without payment of the security ordered by Barma JA.  If the 2^nd Defendant does not wish to pursue the appeal, the dismissal of the appeal pursuant to the order of Barma JA would not prejudice it.  On the other hand, if the 2^nd Defendant still for some reasons wishes to pursue its appeal, it should pay the sum ordered by Barma JA as security for costs. 

11.  For these reasons, quite apart from the facts that the summons was too late and the appeal has already been dismissed, the summons itself has no merit. 

12.  We dismiss the summons of 18 May 2015 and order the 2^nd Defendant to pay the costs of the Plaintiff in respect of that summons.  The Plaintiff has not placed before us a statement of costs.  Based on our assessment of the complexity of the issue and the reasonable work in the preparation of the submissions, we fix the costs by way of summary assessment at $20,000.  It also follows from what we said above that the hearing date of 18 August 2015 has been vacated.