SUNCHASE INTERNATIONAL GROUP (CHINA) LTD AND OTHERS v. VINCOR GROUP OF COMPANIES (INVESTMENT) LTD

CACV64/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 64 OF 2004

(ON APPEAL FROM HCA NO. 1178 OF 1995)

______________________

(By Counterclaim)

_______________________

__________________

J U D G M E N T

__________________

Hon Rogers VP:

1.    This is not a case in which leave should be given under section 22(1)(a).  As has been pointed out, this court is bound by decisions as to whether a judgment is final or interlocutory.  The test which is applied is the applications test.  On that test the matter in dispute in this case does not come within the meaning of ‘final’.

2.    As to the question of discretion, the point as I understand it, put quite simply, is whether it was open to the judge in the court below to dismiss this action for want of prosecution on the basis that there had been a failure to provide security for costs.  In my view it was open to him.  I do not consider that this is a matter of great or general public importance fit for leave to be given to go to the Court of Final Appeal.

Hon Le Pichon JA:

3.    I agree.

Mr Sui See Chun, instructed by Messrs Foo & Li, for the 1st to 3rd Plaintiffs (by Original Action)/Applicants

Mr James Collins, instructed by Messrs Deacons, for the 1st to 3rd Defendants (by Original Action)/Respondents

cacv 64/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 64 of 2004

(on appeal from HCA NO. 1178 of 1995)

____________________

____________________

_____________________________________

REASONS  FOR  JUDGMENT

_____________________________________

Hon Rogers VP:

1.  This is an appeal from a decision of Deputy High Court Judge Muttrie given on 11 February 2004.  In that decision the judge dismissed the appeal by the plaintiffs from a decision of the master who had dismissed this action on the ground that the plaintiffs had failed to furnish security for costs in compliance with the order of Suffiad J dated 7 April 2003.  At the conclusion of the hearing of this appeal this court dismissed the appeal with costs with reasons to be handed in writing.

2.  This matter has some history.  On 7 April 2003 Suffiad J ordered that the 1^st, 2^nd and 3^rd plaintiffs by Original Action should provide security of $1 million within 21 days.  The order also provided that should the security not be furnished within that time all further proceedings herein should be stayed until such time as the 1^st, 2^ndand 3^rd plaintiffs furnished the said security or the action was dismissed for want of prosecution.  Although the order of Suffiad J, therefore, did not include a provision for the automatic dismissal of the action for failure to provide security, it clearly envisaged that an application was likely to follow to dismiss the action should the security not be provided.

3.  Suffiad J’s order was appealed to this court.  On 23 October 2003 this court dismissed that appeal.  In the course of doing so, this court observed that the judge himself had considered that, if anything, his estimate was on the low side.  In March of this year there was an application for leave to appeal to the Court of Final Appeal.  That application was unsuccessful.

4.  Meanwhile on 17 November 2003 the defendants applied for the action to be dismissed on the ground of failure to comply with the order for security for costs.  On 18 December 2003 the master made the order dismissing the action.  The plaintiffs then appealed and that appeal was heard by the judge below on 11 February 2004.  In his reasons for judgment the judge expressed the view that it was open to the master and it was open to him to regard the failure to give security within the time limit as amounting to want of prosecution.  The pending application for leave to appeal to the Court of Final Appeal made no difference as it was not an appeal as of right.  The judge regarded the application for dismissal on the grounds of failure to give security is being equivalent to an application for dismissal for want of prosecution.

5.  In summary, I consider that the orders made by the master and the judge below were well within their discretion and, indeed, I consider that on the facts of this case they were correct.  The order for security was correctly made and there has been ample time since then for the provision of the security.  That has not been done.  It is high time that there is an end to the matter.

Hon Le Pichon JA:

6.  I agree.

Remarks: Application for leave to appeal by 1st, 2nd and 3rd Plaintiffs to Court of Final Appeal. Application refused. Please refer to FAMV21/2004.Remarks: Application for leave to appeal by 1st, 2nd and 3rd Plaintiffs to Court of Final Appeal. Application refused. Please refer to FAMV21/2004.