GURDAS S. CHOITHRAMANI v. MAYER BROWN (formerly known as MAYER BROWN JSM formerly known as JOHNSON STOKES & MASTER) AND OTHERS

CACV 91/2022

[2022] HKCA 1747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 91 OF 2022

(ON APPEAL FROM HCSD NO 27 OF 2021)

________________________

________________________

_______________

J U D G M E N T

_______________

Hon Chow JA (giving the judgment of the Court):

1.  On 4 August 2022, this Court gave its judgment (“the CA Judgment”) ordering the Applicant to pay into court the sum of HK$240,000 within 28 days as security for the Respondents’ costs of his appeal (“the Appeal”) against the order of Deputy High Court Judge Le Pichon dated 18 January 2022 dismissing his application to set aside a statutory demand served by the Respondents on him on 10 June 2021.

2.  The Court made the order for security for costs on the basis that (i) the Applicant was impecunious and the Respondents might encounter difficulty in enforcing any costs order which might be made against the Applicant, and (ii) there was no, or no sufficient, countervailing factor(s) which would militate against an order for security for costs being made against the Applicant.

3.  On 31 August 2022, the Applicant took out a Summons to apply for an order that the time for him to pay into court the said sum of HK$240,000 be extended until 14 days after his application for leave to appeal the CA Judgment has been determined, and that all proceedings in the Appeal be stayed in the meantime.

4.  On 1 September 2022, the Applicant issued a Notice of Motion to apply for leave to appeal the CA Judgment to the Court of Final Appeal.

5.  Having reviewed the documents filed by the parties, we consider it appropriate to determine the two applications on paper pursuant to Order 59, rule 14A(1) of the Rules of the High Court (Cap 4A) and paragraph 3 of Practice Direction 2.1 respectively.

6.  Since the application for extension of time to make payment into court is premised upon the application for leave to appeal, we shall deal with the latter application first.

7.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“HKCFAO”), an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  In both the Notice of Motion and the Applicant’s written submissions dated 21 October 2022, the Applicant made it clear that his application for leave to appeal is based on the “or otherwise” limb of s 22(1)(b) of the HKCFAO, and he is not relying on any question of law of great general or public important being involved in the intended appeal.

9.  It is well established that leave to appeal based on the “or otherwise” limb would not be granted save in exceptional circumstances.

10.  The Applicant relies upon the following matters in support of his application for leave to appeal:

(1)  The Respondents’ fraud and wrongdoings led to his two bankruptcies and caused his impecuniosity.

(2)  The result of the CA Judgment is that the Appeal has been stifled.

(3)  This Court is incorrect to hold that his allegations against the Respondents have twice been rejected by different courts in two earlier actions (HCA 11077/1994 and HCA 2073/2011).

(4)  He is unable to raise funds from his friends or family to pay the sum of HK$240,000 into court.

(5)  There is “inequality of arms” between the Respondents (being one of the leading law firms in Hong Kong) and the Applicant (being a person facing his third bankruptcy).

11.  Points (1) to (4) had been considered by this Court before it made the order for security for costs against the Applicant in the CA Judgment. None of the matters relied upon by the Applicant, whether viewed individually or cumulatively, can amount to exceptional circumstances such as would justify the granting of leave to appeal under the “or otherwise” limb. We are not satisfied that the Applicant’s intended appeal has any reasonable prospect of success. In any event, it is the well settled practice of this Court to defer to the Appeal Committee of the Court of Final Appeal for consideration of whether to grant leave to appeal based on the “on otherwise” limb. We see no good reason to depart from this practice in the present case.

12.  Accordingly, we refuse to grant the Applicant leave to appeal. It follows that his application for (i) an extension of time to make payment into court, and (ii) a stay of proceedings pending the determination of the application for leave to appeal, should likewise be refused.

13.  The Applicant’s Summons and Notice of Motion dated 31 August 2022 and 1 September 2022 respectively are dismissed with costs to the Respondents, to be summarily assessed. The Applicant shall have leave to file and serve a statement of objection (limited to 2 pages) to the Respondents’ statement of costs dated 4 November 2022 within 14 days from this date of this judgment. Subject to any further directions as may be given by this Court, the Respondents’ costs shall be summarily assessed after receipt of the Applicant’s statement of objection (if any).