CSI INVESTMENT MANAGEMENT LTD v. KE JUN XIANG

CACV 17/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 17 OF 2006

(ON APPEAL FROM HCA NO. 1647 OF 2004)

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D E C I S I O N

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1.  I made an order for security on 21 March 2006, giving the defendant 28 days to make payment in.  The last day was 18 April 2006.  The defendant did not make payment in until 19 April 2006.

2.  My order of 21 March 2006 reads as follows:

“IT IS ORDERED that :-

1. the defendant do on or before 18 April 2006 give security to answer costs in case any shall be awarded to be paid by the defendant to the plaintiff by making lodgement in court of the sum of HK$120,000.00 by cash or bankers 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 plaintiff (such notice to be given on the same day as the lodgement is made) all proceedings in the said appeal are to be stayed;

2. in default of the 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 stand dismissed out of this court without further order;”

3.  Having regard to the wording of the order and O. 3 r. 5, I believe I have power to extend time for making payment in notwithstanding that time has already expired.

4.  In the circumstances of this case, having regard to the fact that the delay was only one day, I would give an extension of time so that the payment in which was made on 19 April 2006 could be regarded as having been properly made.

5.  As for costs, I believe in the circumstances of this case, the plaintiff should have the costs of this application, but there is some merit in Mr Lam’s submission that had the plaintiff reacted to the request for an extension of time on 18 April 2006 favourably, or if the plaintiff had not contested this application, the matter could have been dealt with by consent.

6.  On the other hand, Ms Lau has explained that there had been delay caused by the defendant in the past, and that the first letter asking for an extension of time written on 18 April 2006, simply ask for an extension until 21 April 2006, with no indication that the money was already available, or would be paid in on 19 April 2006.

7.  I think in all the circumstances, the order for costs that I would make is that the plaintiff should have the cost of this application, including the costs of today in the cause of the appeal.  Extension of time to make payment into court until 19 April 2006 granted.