PATRICK COWLEY AND WONG WING SZE TIFFANY (JOINT AND SEVERAL TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LAU YU ALSO KNOWN AS JAFFE LAU v. LAU SZE AND ANOTHER

CACV 282/2024, [2025] HKCA 338

On Appeal From [2024] HKCFI 1662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2024

(ON APPEAL FROM HCMP NO 363 OF 2021)

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D E C I S I O N

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Hon Au JA (giving the Decision of the Court):

1.  This appeal is brought by the 1^st defendant on 12 July 2024, against the judgment (“the Judgment”) of Deputy High Court Judge Sara Tong SC (“the Judge”) dated 21 June 2024, whereby the Judge gave judgment in favour of the plaintiff[1] and dismissed the 1^st defendant’s counterclaim after trial.

2.  By way of a summons dated 27 September 2024 (“the Summons”), the plaintiff seeks an order for security for costs against the 1^st defendant in this appeal.

3.  However, on 24 December 2024, the 1^st defendant was adjudged bankrupt, and the Official Receiver (“OR”) has since been appointed as the provisional trustee over his assets. In these circumstances, the 1^st defendant’s right to bring and prosecute this appeal has also since become vested in the OR[2].

4.  By its directions dated 3 March 2025, this court (Hon Au JA), inter alia, stayed the appeal pending the OR’s indication as to whether she would adopt and continue to prosecute this appeal. In response to the court’s directions[3], the OR stated that as the 1^st defendant (now a bankrupt) has confirmed by a letter dated 20 March 2025 that he would not proceed with the appeal, she has decided not to adopt or give consent to the continuation of this appeal, nor would she assign the right of action to the 1^st defendant. The OR therefore invites the court to dismiss the appeal for want of prosecution with no order as to costs[4].

5.  In the premises and for the above reasons, we make no order under the Summons and dismiss the appeal.

6.  As to costs, given that the appeal and the Summons were taken out before the 1^st defendant was adjudged bankrupt, we further order that the costs of the appeal and the Summons incurred by the plaintiff before 24 December 2024 be paid by the 1^st defendant, to be taxed if not agreed. However, the plaintiff can only execute this costs order upon obtaining leave from the Bankruptcy Court to do so[5].