RYDER INDUSTRIES LTD (FORMERLY SAITEK LTD) v. TIMELY ELECTRONICS CO LTD

FAMV No 13 & FAMV No 14 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 13 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO 164 OF 2013)

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CACV No 165 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 14 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO 165 OF 2013)

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DECISION
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Mr Justice Tang PJ:

1.  In these separate appeals, the applicants, Timely Electronics Company Ltd and Chan Shui Woo, were each ordered to provide security for costs in the sum of $400,000 which is the maximum amount which could be ordered under s 25(3)(b) of the Hong Kong Court of Final Appeal Ordinance.

2.  The applicants who are represented by the same solicitors and counsel have applied to a single judge to vary the amounts ordered.  It is said that the appeal will be heard together in this court as they were heard together in the courts below, and that the outcome of the 2 appeals will depend on the answer to the same issues.  I believe that is indeed so.

3.  The appeals are as of right.  Before the Court of Appeal, the applicants also sought leave to appeal on the “great and general public importance” and/or the “or otherwise” basis, which were refused.

4.  I do not believe the fact that there would be one set of costs is decisive.  The maximum security which can be ordered in respect of one appeal is $400,000.  The amount does not represent the amount of costs which might be incurred by a party to the appeal. I will not go into the historical reasons for the low figure.  The amount of security to be ordered is (subject to the maximum) in the discretion of the court.  It is undoubted that the Court of Appeal could order the maximum in each appeal.

5.  These proceedings arose out of business transactions between the respondent (plaintiff) and Timely.  Chan was sued as guarantor.  The trial occupied 9 hearing days.  There were 4 sets of written submissions on costs and interest afterwards, which resulted in a 14 page decision.  The hearing in the Court of Appeal took only one day but there were 7 sets of submissions on the costs order nisi as well as for leave to appeal.  I should add that in the Court of Appeal, the amount awarded was substantially reduced and that as a result of the submissions on costs, the orders nisi were altered in favour of the applicants.  It is not my intention to cast aspersion on any of the parties, I mention them to show the complexity of these proceedings and that $800,000 is unlikely to be adequate security for the costs of the appeal and that but for the statutory ceiling more than $800,000 would most probably have been ordered.  That being the case, I see no reason to reduce the security ordered.  And I refuse the application with a costs order nisi for the costs of this application to be taxed unless agreed.