PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased v. PAUL Y. - SELI JOINT VENTURE

cacv 52/2007

 in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 52 of 2007

(on appeal from DCEC NOS. 493 of 2000 AND 30 OF 2001)

______________________

DCEC 493/2000

IN THE MATTER OF AN APPLICATION BETWEEN:

	PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

 

DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN:

	ATIQ-UR-REHMAN on his own behalf and on behalf of the dependants of SAIF-UR-REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

[Consolidated by Order of H.H. Judge Carlson dated 28th December 2001
and de-consolidated by Order of H.H. Judge Ng dated 18th day of March 2005]

 

Before: Hon Rogers VP in Chambers

Date of Hearing: 4 July 2007

Date of Decision: 4 July 2007

___________________

D E C I S I O N

___________________

 

1.  I have considered this application.  I have read through the judgments again. I regret that I feel it necessary to refuse this application.  I say regret because my major concern in this case is that costs have been run up and are being run up by parties who can ill afford it.  Nevertheless, the substance of this application, when cut to the root, is that this case could have been ready and it is a question of lack of funds, which has meant that it is not ready.  Unfortunately, in our system, that is not a basis for granting an adjournment.

2.  The transcript is ready.  I do not know when it was ready.  It was asked for I am told in March.  It must have been ready fairly soon thereafter.  There is a large sum to be paid for it and, quite understandably, the 1st Applicant cannot afford it at the moment or, at least, has to borrow more money as well as money for his legal costs.  I am sorry that that is not a ground for granting an adjournment.

(Submissions re costs)

3.  Costs in the appeal.

(Anthony Rogers) Vice-President

 

Ms Angela Gwilt, instructed by Messrs Quan & Co, for the Applicant in DCEC493/2000 (1st Applicant)/Appellant

Mr John Wright, instructed by Messrs Burke, Fung & Li, for the Applicant in DCEC30/2001 (2nd Applicant)/Respondent

Messrs Deacons, for the Respondent /Respondent, absent

 

cacv 52/2007

 in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 52 of 2007

(on appeal from DCEC NOS. 493 of 2000 AND 30 OF 2001)

______________________

DCEC 493/2000

IN THE MATTER OF AN APPLICATION BETWEEN:

	PARVEEN TAHIRA and on behalf of the dependants of MUHAMMAD SHAHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

 

DCEC 30/2001

AND IN THE MATTER OF AN APPLICATION BETWEEN:

	ATIQ-UR-REHMAN on his own behalf and on behalf of the dependants of SAIF-UR-REHMAN otherwise known as MOHAMMAD SHEHZAD, deceased	Applicant
	and
	PAUL Y. - SELI JOINT VENTURE	Respondent

______________________

[Consolidated by Order of H.H. Judge Carlson dated 28th December 2001
and de-consolidated by Order of H.H. Judge Ng dated 18th day of March 2005]

 

Before : Hon Rogers VP in Chambers

Date of Hearing : 30 May 2007

Date of Decision : 30 May 2007

 

______________________

D E C I S I O N

______________________

 

1.  In this case the application is made for security for costs on the appeal.  The judge has produced a judgment which is nothing if not industrious, it runs to some 95 pages, after a trial which lasted 15 days.  The case is very peculiar on its facts because it involves questions as to who the deceased actually was and whose son he was.  The judge came to a conclusion, and a very firm conclusion, and was apparently quite convinced about it.

2.  The appeal is on a question of fact.  There was, as a side issue, an application to adduce further evidence which the judge considered after his judgment, on the application for leave to appeal, and he seems to have come to some fairly convincing reasons as to why that evidence would be unreliable.  So that does not inspire a great deal of confidence.  There are other matters which need to be gone into but one certainly cannot do it on this application.

3.  Having given the matter such consideration as I can at this stage, I think that there should be security for costs.  The sum that is asked for in the summons is $125,232.  That is, in any event, a reasonable amount for an appeal in this Court.

4.  Counsel on behalf of the 2nd Applicant, who makes this application, has asked that it be increased by the amount of the costs for this application.  I think it right in the circumstances, and in all the circumstances, simply to leave it at the amount in the summons because security for costs is not intended to cover everything; it is intended to be a reasonable amount and a reasonable assessment.  I think, at this stage, I will leave it at $125,000.  The 1st Applicant, who will have to find the money, may well be in difficulties in finding that amount, particularly as legal aid has not been advanced and will have to find the money from other sources to pursue this appeal.

5.  I propose to make the following orders:

(1)	that the 1st Applicant do, on or before 27 June 2007, give security to answer costs in case any shall be awarded to be paid by the 1st Applicant to the 2nd Applicant by making lodgement in Court of the sum of $125,000 by cash or bankers draft or by the provision of a bank guarantee of the like amount which guarantee shall have been approved by the Registrar;
(2)	and until such lodgement be made and notice thereof given to the Registrar and to the solicitors for the 2nd Applicant (such notice to be given on the same day as the lodgement is made) all proceedings in the said appeal are to be stayed;
(3)	in default of the 1st Applicant making such lodgement as aforesaid within the time specified above or within such further time as the Court may for special reasons allow, the said appeal do (upon the solicitors for the 2nd Applicant certifying such default to the Registrar) stand dismissed out of this Court without further order;
(4)	in the event that the appeal is dismissed in the circumstances provided for above, the 1st Applicant do pay to the 2nd Applicant its costs occasioned by the said appeal, such costs to be taxed; and
(5)	the costs of this application be costs in the appeal.

(Anthony Rogers) Vice-President

 

Ms Angela Gwilt, instructed by Messrs Quan & Co., for the Applicant in DCEC493/2000 (1st Applicant)/Appellant

Mr John Wright, instructed by Messrs Burke, Fung & Li, for the Applicant in DCEC30/2001 (2nd Applicant)/Respondent