XCHRX GUIDO KARL WENK v. ALAN LEE GOLDSTEIN

1998, No. 198
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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D E C I S I O N

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Rogers, J.A. :

1. This is an application for security for costs on an appeal.

2. Before I go further in this decision, I should mention that the Plaintiff in the action was Mr. Guido Karl Wenk and the Defendant was Mr. Alan Lee Goldstein. The Notice of Appeal for some reason appears to have the names of the parties transposed, with the names of the Appellant, the Defendant, above. That is incorrect. The names of the parties should remain as they were in the Court below with the words "Appellant" and "Respondent" respectively added. By transposing them, it only leads to confusion which, I fear, has arisen in at least one of the documents.

3. The appeal is an appeal from a judgment of Deputy Judge Chung who was hearing an appeal from Master Muttrie on an application to extend time to set aside a Registrar's certificate in relation to registration of what was said to be a judgment in Singapore. The judgment in question was in respect of costs of an action in Singapore, the Registrar's Certificate in Singapore having been given on 29th August 1996.

4. The founding judgment in Singapore was dated 28th February 1996 and is for an amount S$230,500 together with interest of S$22,014.33. Those figures, I am told, come to approximately HK$2 m.

5. I should mention at this stage that that the founding judgment itself was also the subject of registration, there was an application to set aside that registration. That application was heard before Master Bennett on the 18th September and Master Bennett dismissed that. I am told that a Notice of Appeal was issued within the 5-day period for issuing the Notice but that the Notice of Appeal has never been served. In those circumstances, there is no appeal against the registration of the "founding judgment". The amount of the founding judgment is owing and has not been paid.

6. In respect of the costs the figure was S$46,152.05. There is now a bankruptcy petition which is to be heard on the 21st October, next week which is founded on the costs part.

7. On the face of it, there would be grounds for saying that it would appear that the Appellant is impecunious having a judgment against him in Singapore for now two and half years, not having paid that and having had that judgment registered against him in Hong Kong and having been unsuccessful in setting that registration aside.

8. Mr. Yau, on behalf of the Appellant, has said everything he could. He has indicated as best he could that the Appellant was dissatisfied with the nature of the proceedings in Singapore. However, I am told that there was an appeal in Singapore and that the judgment stands. Mr. Yau however has told me that he has no instructions as to whether the Appellant is solvent or otherwise.

9. In those circumstances, I consider that it behoves the Court to consider the question of the Appellant giving security on the basis of his being impecunious.

10. My attention was also drawn by Mr. Carolan to Note 59/10/34 in the 1999 Edition of the White Book which indicates that the Court of Appeal will order security for costs upon proof or, in some cases, upon a presumption that the Respondent will be likely to encounter undue delay or be put to undue expense in enforcing any order for costs in respect of the appeal. Examples of security being ordered under this new head of special circumstances are where the nature of the only assets available to meet the costs of the appeal is such that enforcement may be expensive or protracted or where the Appellant's conduct indicates that he/she is likely to resist enforcement of any costs ordered. If nothing else in this case it does appear to me that those last words would certainly encapsulate these proceedings where the Appellant has not shown, as yet, any inclination to pay costs let alone damages which have been ordered.

11. Mr. Yau has very carefully and eloquently shown me that there may well be grounds for appeal in this matter. There are questions which arise on the Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap. 319 and as to the interpretation of that Ordinance in the light of the Reunification Ordinance. There are arguments as to the way in which those provisions and the Rules of Court should be read. I am not satisfied, however, that the merits of the appeal are so strong that they should override an order for security for costs.

12. In my view, the Respondents are entitled to security in this matter and I would therefore order security in the sum asked for which is HK$185,500 since it seems to me that those costs are probably reasonable on my estimation.