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

FAMV No. 21 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2004 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV No. 64 of 2004)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  On 7 April 2003, Suffiad J ordered the plaintiffs to put up $1m by way of security for the costs of the action to be paid within 21 days.  The details of the action are not relevant.  An appeal against that order was dismissed and leave to appeal to the Court of Final Appeal was refused.

2.  The terms of the order of Suffiad J that are material are as follows :

“Should the 1st, 2nd and 3rd plaintiffs fail to furnish the said security within the said 21 days, all further proceedings herein be stayed until such time as the 1st, 2nd and 3rd plaintiffs furnish the said security or the action is dismissed for want of prosecution.”

3.  Security was not put up within the 21 days specified and has never been put up.  This led the defendants to apply to the Master for the action to be dismissed.  Master Woolley granted that application on 18 December 2003 and the appeal to Deputy High Court Judge Muttrie (HCA 1178/1995, 11 February 2004) was dismissed on 11 February 2004, the judge expressing the view that failure to give security within the time allowed amounted to “want of prosecution”.  On 24 September 2004, the Court of Appeal upheld the judge’s order as correct (CACV 64/2004, Reasons having been given on  30 September 2004).

4.  The plaintiffs now seek leave to appeal to the Court of Final Appeal.  The only intelligible complaint is that a failure to pay within 21 days was not sufficient to constitute a basis for dismissing the action “for want of prosecution”. There is also a complaint that no relevant amendment was ever made.

5.  Suffiad J quite properly stayed the action pending provision of the security within 21 days but it was not apt to order that in the event that security was not provided, the action should be stayed until dismissed for want of prosecution.  Since it is the order for stay itself which prevents the plaintiff from further prosecuting the action, the usual basis for dismissing a case for want of prosecution, namely, inordinate and inexcusable delay on the plaintiff’s part to the prejudice of the defendant, is inapplicable.

6.  As Deputy Judge Muttrie pointed out, it would have been open, and in our view, more appropriate, for the court to specify a time within which security had to be given, staying all further proceedings in the meanwhile and providing for the action to be dismissed without further order if security was not given within the time stipulated. 

7.  However, this defect was purely technical and involves a procedural irregularity of no consequence.  There is no doubt that whenever an action is stayed, the court has power to reconsider that stay: whether to lift it, to change the terms on which it is granted, or otherwise.  Here, the plaintiffs had obviously failed to give security within 21 days.  And by the time the matter came before the master, the deputy judge and the Court of Appeal respectively, periods of some 9 months, 11 months and 18 months respectively had passed without any indication that the plaintiffs were or would ever be able or willing to put up the security.  In those circumstances, a decision to dismiss the action for failure to provide the security ordered was undoubtedly correct, even if it was arrived at with an incorrect reference to “want of prosecution”.  Certainly no question of great general or public importance arises.

8.  The application for leave to appeal must therefore be dismissed with costs.

Mr Sui See Chun (instructed by Messrs Foo & Li) for the applicants

Mr Paul Lam (instructed by Messrs Deacons) for the respondents