AK v. MYNT AND ANOTHER

CACV 486/2019

[2021] HKCA 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 486 OF 2019

(ON APPEAL FROM FCMC 16285/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  There are two applications by the Petitioner before us:

(a)  The application for security for costs in the summons of 10 August 2020; and

(b)  The application for further evidence to be adduced in the appeal in the summons of 7 August 2020.

2.  Parties have lodged written submissions on these applications and we have read the same.  We are of the view that the applications can be processed on the papers without any oral hearing.

3.  We shall first deal with security for costs. The Petitioner seeks security for costs from the Intended Intervener in the total sum of $2,714,044, with the breakdowns set out at paragraph 27 of submission of 27 October 2020 of Mr Todd QC and Ms Rattigan.

4.  We must say immediately that most items in those breakdowns cannot be the proper subject matters for security for costs in the appeal: (a) the costs incurred below which is outstanding in the sum of $513,994; (b) the costs of the two interlocutory applications (which are now before us) in the sum of $1,077,550; and the sum of $188,900 in respect of proceedings related to the recovery of costs.

5.  Security for costs under Order 59 Rule 10(5) of the Rules of the High Court (Cap 4A) is to cover for costs of the appeal, not for the costs in proceedings below and proceedings for recovery of costs. Further, in respect of interlocutory applications, the court will usually make a costs order forthwith upon determination of the interlocutory applications. If the award of costs is in favour of a party, that party can seek to enforce such order immediately.  There is no need to order security for the same as a condition for allowing an appeal to be proceeded with.

6.  We shall therefore confine to security for costs for the appeal proper which is said to be $933,600 by Mr Todd.

7.  For the Intended Interveners, Mr Chan SC and Ms Cheng offered security in the sum of $500,000.  Counsel also submitted that the amount claimed by the Petitioner is excessive.

8.  Having read the judgment below and the grounds of appeal, we agree with Mr Chan that the appeal is basically revolved around legal arguments and, as we shall further elaborate below in the context of the fresh evidence summons, we do not see any need or justification for proliferating issues.  With respect, we find the manner in which the materials were presented on behalf of the Petitioner to be wholly disproportionate and unnecessary for the proper resolution of the appeal.

9.  We agree that the sum claimed by the Petitioner for the appeal proper is excessive.  We would only order security for costs in the sum of $500,000.

10.  In light of our directions for expediting the appeal to be heard in June 2021, and also in light of the Intended Interveners having no difficulty to offer such sum, we will give them 14 days to pay such security into court.  In the meantime, pending the payment into court, the appeal shall be stayed.  If the security for costs is not paid by 15 April 2021, the appeal shall be dismissed with costs.

11.  Given that the Intended Interveners has offered such sum and the gross exaggeration in the amounts claimed on behalf of the Petitioner, we will order each party to bear their own costs in the application for security for costs.

12.  Regarding the fresh evidence application, having considered the submissions of Mr Todd and Mr Chan, we shall only admit the following documents as additional evidence in the appeal:

(a)  The Judgment of the Jersey Court dated 21November 2019; and

(b)  the Trustees' Narrative Explanation on the trusts (excluding the attachments) dated 6 January 2020.

13.  These documents are sufficient to give the court the background information which is necessary for the proper resolution of the appeal.  All the other documents are, in our view, unnecessary and their inclusion in the appeal materials would divert focus from the real issue that has to be resolved in the appeal.  Even though the rule of Ladd v Marshall is not applicable to post-judgment documents, this Court will not admit additional evidence which is not necessary for the resolution of an appeal.

14.  It has to be borne in mind that the judge below was capable of deciding the matter by reference to the materials before him (which only consisted of a hearing bundle of 40 pages).  We cannot see any good reason for expanding the appeal bundle to 2,000 odd pages by inclusion of unnecessary documents.  Mr Todd has failed to persuade us that the other documents received from the Trustees are relevant for the determination of this appeal which only concerns with the issue of joinder.  The direction of the Jersey Court concerning bringing materials to the attention of the Hong Kong court must be referring to the court hearing the substantive Section 17 application as opposed to this appeal.  In any event, proper case management of this appeal is the purview of this Court, not the Jersey Court.

15.  It is not necessary for these other documents to be included in the appeal bundles for the points advanced in paragraphs 19 and 20 of Mr Todd’s submissions of 27 October 2020 (insofar as they are relevant for the determination of the appeal, which is disputed by Mr Chan).  We are not minded to permit this appeal to be turned into a forum for debating issues which go beyond the legitimate scope of an appeal against a decision on joinder.

16.  Subject to the permission granted under [12] above, we would dismiss the summons of 7 August 2020.  

17.  In light of the way in which the application for fresh evidence has been brought, we shall order the Petitioner to pay 50% of the costs of the Intended Interveners in the summons of 7 August 2020 with certificate for 2 counsel. The statement of costs of the Intended Interveners asked for $648,049 for this summons (with $273,849 as counsel’s fees).  We would summarily assess the same as $500,000.  50% of the same, viz $250,000 is to be paid by the Petitioner to the Intended Interveners forthwith.

18.  Given that a date has already been fixed for the substantive hearing of the Section 17 application, this appeal should be heard expeditiously.  We now give the following directions for the appeal to be heard in June 2021:

(a)  The appeal is to be heard on a date between 18 and 24 June 2021, both dates inclusive, (with an estimate time of half a day) before two judges in the Court of Appeal;

(b)  Parties shall agree on the actual hearing date between 18 and 24 June 2021 if possible.  If no agreement is reached by 7 April 2021, the Court will fix a date between those dates without regard to counsel’s diaries;

(c)  The Intended Interveners shall lodge 2 sets of appeal bundles (which shall also include the papers relating to the Section 17 application) on or before 21 April 2021;

(d)  The Intended Interveners shall lodge 2 sets of skeleton submissions on or before 28 April 2021;

(e)  The Petitioner shall lodge 2 sets of skeleton submissions on or before 12 May 2021;

(f)  The Respondents shall lodge 2 sets of skeleton submissions on or before 12 May 2021 if they wish to take an active part in the appeal; and

(g)  No further documents are to be lodged or filed without leave of the court.