PERFECT LAND IND CO (a firm) v. SKYCITY UNIVERSAL LTD

CACV70/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.70 OF 2004

(ON APPEAL FROM DCCJ 21981 OF 2001)

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Before : Hon Tang JA in Chambers

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D E C I S I O N

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1.  The defendant company was given leave to appeal on 3 March 2004 and the appeal was scheduled to be heard on 26 April 2005.  On 24 January 2005 an order was granted discharging the defendant’s solicitors, Messrs Ng & Shum, from representing the defendant.  Up to date the defendant, a limited company, is unrepresented and it is absent today.

2. This appeal involves a judgment which was obtained on 5 November 2003 in the District Court in the sum of $280,210 for goods sold and delivered in a trial which lasted five days.  Execution of the judgment by garnishee order has been returned unsatisfied.  Up to date no appeal bundle has been prepared. 

3. The plaintiff now applies for security for costs in the sum of $100,000.  The application however was taken out on 21 March 2005.  I am concerned that the application was only made as recently as 21 March 2005.  But Mr Kwok who appears on behalf of the plaintiff has submitted that although the application is made late, it is in all the circumstances unlikely that the defendant would appear on the appeal, and if the order sought is not made then the plaintiff would be obliged to instruct counsel and incur unnecessary costs.

4. In the circumstances, I am satisfied that I should approach the matter with common sense, and looking at it with common sense it is just that security should be ordered since it is likely that the defendant would be unable through impecuniosity to pay the costs of the appeal.  The amount of the security sought is $100,000 which I believe is on the high side considering that this is an appeal from the District Court, albeit from a trial which had lasted five days.  The amount of security that I would order is $80,000.  The order that I would make is that the defendant do give security for the plaintiff’s costs of the appeal in the sum of $80,000 by payment into court on or before 4 pm, Friday, 22 April 2005 and the appeal is stayed in the meantime and that in default of the defendant giving the security within the time limited the appeal do stand dismissed with costs without further order. 

5. So far as the costs of this application is concerned, I think I would make that costs in the appeal.