WONG KAM SAN AND ANOTHER v. YEUNG WING KEUNG AND OTHERS

cacv 131/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 131 of 2007

(on appeal from HCA NO. 2036 of 2005)

______________________

______________________

___________________

D E C I S I O N

___________________

1.  In this case there is only one dispute and that is the amount of security.  The 5th Defendant has offered to pay the security in the sum of $300,000, which, in my view, is entirely reasonable and they have done that well before this hearing.  In those circumstances, I propose to accept that as the correct figure.  It is quite reasonable for a case of this sort.

2.  I say nothing about leading counsel’s fees.  The approach on security for costs has to be a rough estimate of what this court considers a suitable counsel can be employed, who is competent to do the case on behalf of the Plaintiffs, and, as far as I am concerned, the figure of $300,000 should cover an adequate amount in respect of security for costs on that basis.

3.  The order which I will make is in the standard form:  That is, the 5th Defendant do on or before 1 August 2007 give security to answer costs in case any shall be awarded to be paid by the 5th Defendant to the Plaintiffs by making lodgement in court of the sum of $300,000 by cash or banker’s draft, or by the 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 Registrar and to the solicitors for the Plaintiffs such notice to be given on the same day as the lodgement is made, all proceedings in the said appeal are to be stayed.  In default of the 5th Defendant making such lodgement as aforesaid within the time specified above or within such further time as the court may for special reasons allow, the said appeal do, upon the solicitors for the Plaintiffs certifying such default to the Registrar, stand dismissed out of this court without further order.  In the event that the appeal is dismissed in the circumstances provided for above, the 5th Defendant do pay to the Plaintiffs their costs occasioned by the said appeal, such costs to be taxed and the costs of this application be costs in the appeal and the order that I propose to make is that the costs of this application be costs in the appeal save for the costs of today, which I propose to make the 5th Defendant’s costs in the appeal.  That will mean that if the 5th Defendant wins the appeal he gets his costs of today.  If he loses the appeal, nobody gets their costs.