QUESTNET LTD v. KURT GEORG ROCCO RINCK AND ANOTHER

CACV 71/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 71 OF 2008

(ON APPEAL FROM HCA NO. 1475 OF 2006)

----------------------

----------------------

-----------------------

D E C I S I O N

---------------------

1.  This comes before me as an application for security for costs on an appeal which is to be heard on 10 December.

2.  Although the appeal was launched some time ago, in March of this year, this application comes late.  The reason it came late is that the Plaintiff, who seeks the costs, indicated that it thought that the appeal might in fact never take place if the 2nd Defendant, against whom the security for costs are sought and who is the Appellant, were made bankrupt.  That bankruptcy hearing is now not to take place until March of next year.  It is in those circumstances that this application is made late.

3.  I have to say, on this application, that the application for security for costs is not without grounds but I would also say that the 2nd Defendant does also have grounds for resisting on the basis that the matter concerns a prohibition order and the 2nd Defendant has been kept in Hong Kong for some time now, some two years, and has been unable to work during that time.

4.  Following an indication from the Court that the whole appeal may be derailed to the extent that it might have to be put off for a very long time, or for a considerable time, until it can be re-fixed were I to order security for costs, because it would be open to the 2nd Defendant then to appeal to the two-man court of the Court of Appeal which would inevitably not take place before 10 December, Mr Maurellet, who appears for the Plaintiff, indicated, at my suggestion, that I should make no order on this application.

5.  Having read the papers, and spent quite a deal of time reading the papers, I consider the right order to make today is that there should be no order on this application and no order as to costs and this will enable the appeal to go ahead.