SETO WAI LEUNG BENNY v. SE-TO SHUK YEE AND OTHERS

CACV 601/2018

[2019] HKCA 943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 601 OF 2018

(ON APPEAL FROM HCAP NO. 18 OF 2015)

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D E C I S I O N

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Hon Cheung JA (giving the decision of the Court) :

1)  Security for costs of appeal

1. Deputy High Court Judge William Wong SC gave judgment for the plaintiff against the 1^st defendant for, amongst other things, revocation of the Letters of Administration granted to the 1^st defendant of the estate of Sau Ying Setolaw (‘the deceased’). The plaintiff is also appointed as the administrator of the will of the deceased.  The 2^nd, 3^rd and 4^th defendants were nominal defendants in the Court below.  The 1^st defendant now appeals and the plaintiff applies for security for costs of the appeal against the 1^st defendant which is opposed by her.  We will deal with the application on paper.

2)  Special circumstances

2.1 The 1^st defendant resides in the USA.  She did not attend the trial. Although she had requested for an adjournment of the trial, it was refused by the Judge.

2.2 The Court may in special circumstances order an appellant to provide security for the costs of his or her appeal.  The exceptional circumstance in this case is that the 1^st defendant resides outside Hong Kong in the USA.  This clearly will create problems with enforcement of the judgment on costs in the event the plaintiff is successful in the appeal, such as incurring additional costs for enforcing it overseas. Although the 1^st defendant and her husband are currently the joint owners of a property in New York, this property is under mortgage.  The plaintiff’s case is that it was bought with proceeds from the sale of the deceased’s estate.  The problem of enforcement remains to be valid.  In addition, the 1^st defendant is liable for another order for costs against her.  She claimed to have no income and there is only a small sum in her bank account.  In our view, the plaintiff has made out his case on special circumstances.

3)  Merits of the appeal

3. The 1^st defendant contends that she has a meritorious appeal.  A meritorious appeal may cause the Court to exercise the discretion in favour of the appellant notwithstanding the presence of the special circumstances so as to prevent a genuine appeal being stifled.  We, however, do not agree that the 1^st defendant can show at this stage that her appeal is so meritorious that we should refuse to order security.  The judgment below is based entirely on findings of fact by the Judge.  At the trial below, the 2^nd, 3^rd and 4^th defendants all gave evidence in support of the plaintiff’s claim.  The 1^st defendant has not showed, at this stage, that the findings are plainly wrong.

4)  Amount of security

4. As to the amount of security, the plaintiff is asking $562,500 which includes $380,120 for the appeal and $182,380 for the present application.  The appeal is a simple one.  On a party and party basis $300,000 is sufficient.  Since attendance is not required for the present application, $80,000 is a sufficient amount.

5)  Conclusion

5. Accordingly, we will make the following orders :

(1) The 1^st defendant to pay into Court within 28 days from the date of this Decision $380,000 as security for the plaintiff’s costs in the appeal.

(2) Pending payment, the appeal is stayed.

(3) In default of payment, the appeal shall without further order stand dismissed with costs to the plaintiff.

(4) Costs of this application be to the plaintiff.