JOHNNY HO & PARTNERS LTD. v. AUSCON INVESTMENT LTD.

CACV 184/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 184 OF 2000

(ON APPEAL FROM THE COURT OF FIRST INSTANCE

ACTION NO. HCA 4752 OF 1998)

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J U D G M E N T

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Hon Woo JA (delivering the judgment of the Court):

1. This is an application by the plaintiff for leave to appeal to the Court of Final Appeal from our judgment dated 8 December 2000 which affirmed the judgment of Deputy Judge Chu handed down by her on 7 April 2000.

2. The claim of the plaintiff was for payment of alleged outstanding balance of the prices or reasonable charges for various items of construction works carried out by the plaintiff for the defendant in the erection of a building. The Deputy Judge dismissed the plaintiff's claim and allowed the defendant's counterclaim in the sum of $645,268.30.

3. Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides as follows:

"(1) An appeal shall lie to the Court in any civil cause or matter-

(a) as of right, from any final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more; ..."

4. As mentioned in the Deputy Judge's judgment, the claim in its revised version before her was for a sum of $1,196,138.44. The appeal against the Deputy Judge's judgment to this Court raised eight grounds, all of which were found by this Court to be unsubstantiated. These eight grounds of appeal involved sums totalling $1,797,289.29. In the papers submitted by Madam Zhu Hui Ren, a director of the plaintiff, the sums involved in the intended appeal total $1,684,785.56. Each of the amounts claimed in the revised claim, the total amount raised by the said eight grounds of appeal and that in the intended appeal being over $1,000,000, it is plain that the plaintiff's intended appeal comes within section 22(1)(a) of the Ordinance. Indeed, Mr Vaughan, for the defendant, accepts that.

5. Section 23(2) of the Ordinance provides as follows:

"(2) Where an appeal lies of right, leave to appeal shall not be refused but shall, in the first instance, be granted as conditional leave in accordance with section 25."

6. Under section 25 of the Ordinance, the conditions which may be imposed on the granting of leave to appeal to the Court of Final Appeal include conditions as to time within which an appellant shall prosecute his appeal and security for costs.

7. We are of the view that in the circumstances of this case, especially because of the lack of substance of the intended appeal and the plaintiff's financial position, it is just right for us to exercise our powers under sections 23(2) and 25 of the Ordinance to impose terms for granting leave to appeal. Indeed, Madam Zhu in this court even volunteers the information that the plaintiff is in financial difficulty, even telling us the possibility of applying for comprehensive social assistance.

8. The defendant has applied for security for costs of the appeal. In the affirmation filed in support of the application for security for costs, the defendant provides particulars of the costs in respect of which security is sought, being a sum of $118,000. This sum does not appear to us to be unreasonable but has not taken into account the usual taxation-down of costs on a party and party basis.

9. In all the circumstances of this case, we would grant leave to appeal to the Court of Final Appeal on the following two conditions:

(1) Security for costs to be provided by the plaintiff within 28 days from today by payment into court or alternatively by furnishing security in such form and terms as acceptable to the Registrar of Appeals in the sum of $78,000; and

(2) The record of the appeal to the Court of Final Appeal be filed by the plaintiff with the Court of Final Appeal within 3 months from today.

10. We make an order accordingly. We also order that the costs of today's application of the plaintiff and that of the defendant to be costs in the cause of the appeal.