CHAN SAI LUN, HENRY v. CHAN WAI WAH, LILY ANN

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JUDGMENT

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Hon Woo JA:

History of the hearing

1. On 27 July 2000, when this matter first came before me fixed for 9:30 am, the defendant was absent. While waiting for her to appear, the court received a facsimile from her timed 9:35 am, which informed the court that she was ill and was applying for legal aid or appealing against refusal of legal aid. Mr Cheung, counsel for the plaintiff, urged me to deal with the matter there and then instead of adjourning the hearing on the basis that the defendant had been employing delaying tactics. Although I felt that the basis relied on by Mr Cheung was not unwarranted in the light of the background referred to below, I thought in the circumstances it might be unjust to decide on this matter without giving the defendant another chance to be heard. I therefore adjourned the hearing to a date to be fixed in August, and directed that the application would be considered even if the defendant be absent again and without any regard to her application/appeal in respect of legal aid, so as to ensure that the application would be disposed of without any further delay. When my order and direction was made known to her, the defendant sent a facsimile to the court on 28 July, demanding an explanation why the said application/appeal should not be taken into account in the consideration of this matter and applying to adjourn the hearing to after 19 September, the date fixed for hearing her appeals referred to below. I refused her application. The reason is simple and straightforward: the court will not countenance any delaying tactic to hinder any of its proceedings being timeously and properly dealt with.

2. On 15 August 2000, when the hearing resumed at the appointed time of 9:30 am, the defendant was absent. It was not until about 9:40 am that she appeared and handed to my clerk a draft affidavit for the use of the hearing. She eventually undertook to have the affidavit sworn and filed on the same day. That appeared to me to be a repetition of the situation before Besson J on 23 March 2000 when the defendant submitted to the judge a draft affidavit which was only filed after the hearing on 24 March 2000.

The plaintiff's summons and background

3. By a summons taken out by the plaintiff on 6 July 2000 and served on the defendant by post on 7 July 2000, the plaintiff seeks an order that the defendant do within 14 days provide security in a sum of $168,854 for the costs of and occasioned by the appeals brought by the defendant herein. The appeals are against the order of Beeson J dated 23 March 2000 and against the order of Mayo VP dated 17 May 2000.

4. Beeson J's said order was made on an application by the plaintiff for possession of the premises known as 1^st Floor, Flat C, 94 Robinson Road, Hong Kong ("the Property"). Mayo VP's order of 17 May 2000 was to the effect that he dismissed the application taken out by the defendant for setting aside the order of Beeson J dated 23 March 2000 and for staying the execution of that order pending the outcome of the defendant's appeal against that order.

5. The Property formed part of the estate of Chan Kwong Chung, the deceased father of the plaintiff and the defendant, who are respectively brother and sister. The deceased passed away over ten years ago on 13 January 1990. The dispute between the siblings has a long history. The deceased's will appointed the plaintiff as the sole executor and devised the Property to him. The defendant challenged the validity of the will on various grounds. On 1 May 1998, after a trial of a total of 28 days spanning the period from 20 October 1997 to 17 April 1998, Barnett J handed down judgment, dismissing the defendant's challenges to the validity of the will. Probate of the will had since been granted. The defendant lodged appeals against Barnett J's judgment. On 20 March 2000, Ribeiro JA made an order for security of costs of the appeals against the defendant. At the time of the hearing before Ribeiro JA, the defendant had lodged an appeal to the Master of the High Court against the Director of Legal Aid's refusal to grant legal aid to her. Paragraph 4 of the order of Ribeiro JA made on 20 March 2000 is as follows:

6. Paragraphs 1, 2 and 3 of Ribeiro JA's order read as follows

7. The appeal against refusal of legal aid was eventually dismissed by Master Barnes on 15 May 2000. Accordingly, the order for security for costs made by Ribeiro JA took effect on 15 May 2000, and the defendant's compliance with the order for security for costs against her should be made by 29 May 2000, 14 days from the date of the Master's dismissal of her appeal against refusal of legal aid. However, the defendant has not by 29 May 2000 or at any time thereafter complied with Ribeiro JA's order. That was the end of the defendant's intended appeals against Barnett J's judgment relating to the validity of the will, because the appeals stood dismissed without any further order.

8. The plaintiff's claim in this action, in which summary judgment was granted by Beeson J, is based on his title to the Property, which formed part of the estate of the deceased under the plaintiff's executorship and formally vested in him by an Assent dated 12 May 1999. According to the statement of claim, the plaintiff orally permitted the defendant to stay in the Property on a temporary basis without consideration. That oral permission was given to the defendant on about 15 January 1990. By a letter dated 11 May 1999 from the plaintiff's solicitor to the defendant, the defendant was demanded to forthwith deliver up vacant possession of the Property to the plaintiff, in any event not later than 30 June 1999, failing which the plaintiff would institute legal proceedings against the defendant for the recovery of vacant possession of the Property. The defendant did not comply with the demand, which led to the plaintiff bringing this action. As said before, Beeson J gave judgment for possession in favour of the plaintiff on 23 March 2000. On 17 May 2000, Mayo VP refused the application of the defendant to order a stay of the order for possession made by Beeson J. Against both of these orders, the defendant has lodged appeals. It is in respect of such appeals that the plaintiff now seeks security for costs against the defendant.

Application of the rules on security for costs

9. It is well settled that lack of assets within the jurisdiction and impecuniosity on the part of the appellant (i.e. the defendant in this case) is a ground for granting an order for security for costs of an appeal. In Ribeiro JA's judgment dated 20 March 2000, it was mentioned that the defendant did not dispute her inability to pay the plaintiff's costs out of means available to her if she were to lose her appeal. According to paragraph 1 of her affidavit that was used at the hearing before Beeson J on 23 March 2000 and was eventually filed on 24 March 2000, the defendant swore to the following facts, namely, that she was receiving comprehensive social security assistance, that she had no cash on hand, that in her one and only bank account in the world she had $2.20, and that she did not own any property in the world either. There is no evidence to show that her financial position has changed since then. Indeed, by her draft affidavit submitted on 15 August 2000, she stated that she was receiving assistance in the sum of just over $1,800 per month. She also told me in her submissions that that sum was not even sufficient for her to sustain herself.

10. The defendant raised the points that since she had no money to provide any security for costs of the appeals, ordering her to do so would amount to a denial of justice and in any event the court should not order any security for costs beyond her means, for otherwise she would be debarred from having access to the courts. It is in a way paradoxical that it is an established practice to order security for costs where the appellant is impecunious and that the amount to be secured should not be beyond the means of the appellant. I am of the view that the way to resolve these two apparently conflicting principles is to consider whether in all the circumstances of the case justice can be done by making or refusing to make an order. One of the key matters to be put on the balancing scale is to consider the chances of the appellant's appeal.

11. As the appeals lodged by the defendant in CACV 143/1988 and CACV 205/1998 came to an end after 29 May 2000, there can be no valid ground of appeal against the orders made by Beeson J and Mayo VP which are rooted on the plaintiff's title to the Property derived from the will. I have considered the grounds of the appeals raised by the defendant against these two orders, on paper and in her oral submissions made to me, but cannot find anything that may justify either of these two orders being disturbed.

Conclusion

12. In all the circumstances, therefore, there is absolutely no justification to expose the plaintiff to the injustice of having to bear his own costs even if he successfully resists the appeals lodged by the defendant. I have checked the skeleton bill of costs prepared for the plaintiff in relation to the appeals and found the sum of $168,854 reasonable. However, that sum must be reduced by a certain amount as the plaintiff may only be entitled to costs on the party and party basis. I think a sum of $115,000 would not be too far off line. I therefore make the following order: