CHONG KAI TAI and Another v. LEE GEE KEE and Another

IN THE COURT OF APPEAL

1995, No. 109

(Civil)

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D E C I S I O N

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Litton V-P giving the decision of the Court:

1. What we have before us is a motion taken out on behalf of the unsuccessful purchasers (the plaintiffs) for an order that the execution of the costs incurred by the vendors (the defendants) both in the High Court and on appeal be stayed until the final conclusion of the proceedings which are due to be heard in the Privy Council in February next year.

2. The material before us is somewhat shadowy as regards the financial position of the purchasers. All that we have is a statement on affidavit to the effect that the purchasers "will be financially embarrassed" if they had to pay the taxed costs of the appeal in the sum of $164,889.50. The purchasers go on to state that they should not be deprived of their right to appeal to the Privy Council: by that, counsel Mr Pirie says, it means in effect that if execution were to proceed then that would render the appeal itself nugatory, since his clients the purchasers would not be able to raise the money for prosecuting the appeal. This statement has been somewhat tempered in argument because it emerged later on that, with some difficulty, the purchasers will be able to come up with the $164,000 odd within two weeks.

3. We have been told by counsel for the vendors that the costs in the High Court have now been taxed and it comes out at the figure of $472,801. So it appears that the total liability at the moment exceeds $637,000 odd.

4. This not an easy matter. The burden is on the purchasers. They could have come up with more disclosures concerning their financial positions. On the other hand if there is a real risk that the appeal, now imminent, is likely to be frustrated if execution should proceed, that is something which also weighs in the scales. Exercising our best judgment we think that we should accede to the motion, but upon terms: The terms being that if the sum of $250,000 should be paid within 14 days then there will be a stay regarding all the costs, but this is only upon the undertaking of the solicitors for the vendors (which counsel for the vendors has indicated they are willing to give) that the sum be repaid in the event of the vendors being unsuccessful in the Privy Council. The order we propose will be as follows:

5. Upon the solicitors for the vendors (defendants) by counsel being their counsel for this purpose undertaking to repay to the purchasers (plaintiffs) the sum of $250,000 hereinafter mentioned in the event of the purchasers' appeal to Her Majesty in Council being successful or in the event of a court so ordering: It is ordered that within 14 days from today's date the purchasers do pay to the vendors' solicitors the sum of $250,000 and that if such sum be paid as aforesaid then execution of the orders for costs be stayed.