LI MAN YAN v. TSOI KWAI YING

CACV 29/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 29 OF 2011

(ON APPEAL FROM HCSD No. 15 of 2010)

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BETWEEN

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the court):

1.  This is an appeal from a decision of Cheung JA ordering Li Man Yan the Appellant in CACV29/2011 to pay $80,000 as security for costs of his appeal against the judgment of Au J given on 6 January 2011. 

DCCJ 5613/2008

2.  In brief, the background is that in DCCJ 5613/2008, final judgment was entered against Mr Li by Tsoi Kwai Ying on 28 December 2009 with damages agreed at $240,000. 

HCSD15/2010

3.  Mr Li having failed to pay those damages, Madam Tsoi presented a statutory demand against Mr Li in HCSD15/2010 on 12 April 2010.

4.  Mr Li sought to set aside the statutory demand on the ground that he already had an Individual Voluntary Arrangement since April 2008 under which all of his income is accounted for in payment of his existing liabilities, and he proposed postponing payment of the sum due to Madam Tsoi to July 2012, 2 months after his retirement, at a higher rate of interest.

5.  In a written judgment given on 6 January 2011, Au J rejected Mr Li’s grounds for setting aside the statutory demand.  The learned judge held that as a judgment creditor, Madam Tsoi was entitled to issue the statutory demand as of right, and that she was entitled to reject the proposal for postponement of payment of the sum due to her until after the settlement of Mr Li’s other debts.

CACV 29/2011

6.  Mr Li has appealed Au J’s decision.  Madam Tsoi sought security for costs of that appeal. 

Cheung JA’s decision

7.  Cheung JA held that security for costs was justified as Mr Li has admitted that he is impecunious, and he has not shown that he has a reasonable prospect of success in his appeal against Au J’s decision.

Appeal against Cheung JA’s decision

8.  This is the decision against which Mr Li appeals.  Essentially his case is that on retirement his assets will be greater than his liabilities as he will be in receipt of certain retirement benefits contributions.  It does not appear that these additional contributions had ever been referred to before, but as Mr Ngai counsel for Madam Tsoi pointed out, even if the additional contributions are included in the assets, Mr Li’s payment to his wife would have to be correspondingly increased, and his liabilities would still be greater than his assets.  Mr Li agreed with Mr Ngai’s calculations.  In any event, it does not affect Mr Li’s financial position now which is the position addressed by Au J when deciding whether or not to set aside the statutory demand.  

9.  Regarding the appeal from Cheung JA’s order, it was made in the exercise of the learned judge’s discretion, and it is well-established law that an appellate court does not interfere with the exercise of a judge’s discretion unless there has been an error of law, or a misapprehension of material facts, or an error in the scope of matters taken into account, or unless the decision is plainly wrong.  We do not see how Cheung JA can be said to have erred on any of these grounds. 

Order

10.  Accordingly this appeal must be dismissed.  We see nothing to justify a departure from the usual costs order which is that the successful party should get his/her costs.  We have considered the statement for summary assessment of costs presented by Madam Tsoi’s legal advisers.  We consider a reasonable sum to be $25,000 and accordingly we order Mr Li to pay Madam Tsoi costs in the sum of $25,000.