LAU CHUN KAM v. LAI TAK SHING

CACV 379/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 379 OF 2008

(ON APPEAL FROM HCA NO. 2126 OF 2007)

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D E C I S I O N

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1.  This is an application for security for costs on an appeal in an Order 14 case.  The issues involved seem to me to be comparatively simple.

2.  On 5 January, the plaintiff wrote asking the defendant to provide security for costs on the basis of impecuniosity and asked for security in the sum of $200,000.00.  That then went up after that and they added in the costs of this application.  They have calculated their own costs: on their skeleton bill there is a total of $300,000.00 but they asked for $250,000.00 for security for costs on a without-prejudice basis save as to costs, whatever that means.

3.  I have had a look at the skeleton bill.  I have also had a look at the bill of costs of the Order 14 application which is due for taxation next month and there are remarkable differences.  One of the obvious ones, I hesitate to mention, is counsel’s fees which seem to have trebled between the court below and here.

4.  To my mind, the plaintiff has raised the question of the defendant’s impecuniosity and that has not been satisfactorily answered.  Admittedly, the impecuniosity was based on the defendant being unable to pay for the construction of a house of which a flat is in issue, but, nevertheless, the defendant has not been able to answer that.

5.  Given the issues that are involved, which are to my mind quite simple on an Order 14 application and having looked at the costs below, it seems to me that the right order for costs would only be about $100,000.00.  So the order that I intend to make is that:

(1)  the defendant do, on or before 23 March 2009 give security to be paid by the defendant to the plaintiff in the sum of $100,000.00 by cash or banker’s draft or by provision of a bank guarantee of the like amount which guarantee shall have been approved by the Registrar and until such lodgement be made and notice thereof given to the solicitors for the plaintiff, such notice to be given on the same day as lodgement is made, all proceedings in the appeal be stayed;

(2)  in default of the defendant making such lodgement as aforesaid, or within such further time as the court may for special reasons allow, the said appeal do upon the solicitors for the plaintiff certifying such default stand dismissed out of this court;

(3)  In the event that the appeal is dismissed in the circumstances provided for above, the defendant do pay to the plaintiff his costs and that the costs of this application be costs in the appeal.