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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IN THE MATTER of Unit A on 15th Floor, Tower 3, The Pavilia Hill, No.18A Tin Hau Temple Road, Hong Kong
and
IN THE MATTER of Order 113 of the Rules of the High Court, Cap 4A
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BETWEEN
PATRICK COWLEY AND
Plaintiff
(JOINT AND SEVERAL TRUSTEES
and
LAU SZE (柳思)
1st Defendant
THE OCCUPIER(S) OF THE UNIT A
2nd Defendant
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Before:
Hon Au and G Lam JJA in Court
Date of Decision:
11 April 2025
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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 1st 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 1st 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 1st defendant in this appeal.
3. However, on 24 December 2024, the 1st defendant was adjudged bankrupt, and the Official Receiver (“OR ”) has since been appointed as the provisional trustee over his assets. In these circumstances, the 1st 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 1st 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 1st 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 1st 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 1st 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] .
(Thomas Au)
(Godfrey Lam)
ONC Lawyers, Solicitors for the Plaintiff
The 1st Defendant, acting in person
[1] The plaintiff is the trustee over the assets of Jaffe Lau (柳宇), who has been bankrupted and is the 1st defendant’s brother.
[2] See Bankruptcy Ordinance (Cap 6), section 58, Koh Kee Suan v Ip Kay Lo [2001] 3 HKLRD 439 at 441, and Proggetto Jewellery Co Ltd v Lau Chiu Ying [2023] HKCA 140 at [8] and [9].
[3] By way of her letter dated 27 March 2025, which was copied to the plaintiff’s solicitors (“ONC ”) and the 1st defendant.
[4] ONC for the plaintiff has not made any response to OR’s said letter.
[5] See Proggetto Jewellery , supra , at [11] and [12] and the authorities cited therein.