ATHANASIOS KONDYLIS v. KIM'S YACHT COMPANY LIMITED DCEC 918/2005

S’s word:-

It is so rare that we can find an employees’ compensation claim involving the issue of security for costs. The following case demonstrates an example.

I believe that we do have very much employees compensation claim involving such an issue due to the following reasons:-

1. most injured employees are not ordinarily residents overseas;
2. even though residents overseas, not all such employees do have the means to pay for security for costs;
3. in many employees’ compensation claims, the insurers/respondents do not agree the injured was not an employee.

But, in this case, the Applicant did have taken a very constructive approach for the issue of security for costs. Even before the hearing, the Applicant did have proposed to give a very substantial amount of security for costs and such amount was finally accepted by the Court.

Therefore, the Respondent could only get part of the costs for the application for security for costs but at the same time had to bear the balance and in more important the costs for the hearing.

So, the Applicant was still the winner of the application.

It thus also explains that why constructive offers should always be in our mind to protect the issue of costs.

--- quote from judgment ---

Date of delivering and handing down decision : 24 October 2007

This is the Respondent’s application for security for costs pursuant to O.23, r.1 of the Rules of the District Court, Cap.336. The ground is that the Applicant is ordinarily resident overseas.

There is no dispute that the Applicant is ordinarily resident overseas for the purpose of O.23. The Applicant’s address reported is in Guangdong, the Mainland.

The Applicant also does not argue that he has substantial assets within the jurisdiction which may be of sufficiently permanent nature and available for enforcement of any adverse costs order.

The Applicant opposes the application on the following grounds:

(1) The Applicant has a genuine and strong prospect of success in this case. Effectively the risk of an adverse costs order is low.
(2) There was intentional delay on the part of the Respondent in taking out the application for security.
(3) In any event, the amount of security requested is excessive.

In the circumstances, this remains an appropriate case to order security. The question will then be that of the appropriate amount.

In my view, the amount of HK$150,000 proposed by the Applicant is fair and realistic. I am minded to order security in such amount. I shall finalise the order after hearing parties on costs of this application since this forms part of the security requested.

[Parties submit on costs. The court’s attention is drawn to the fact that the Applicant offered security in the amount of HK$150,000 by his solicitors’ letter dated 30 August 2007, such offer being open for acceptance in 7 days. The Respondent rejected the offer.]

(1) All proceedings be stayed until the Applicant provides security for costs up to the end of trial in the amount of HK$150,000 by payment into court within 21 days from the date of this order.
(2) Costs of this application up to and including 6 September 2007 be to the Respondent, to be taxed, if not agreed.
(3) Costs of this application since 7 September 2007, including the costs of today’s hearing, be to the Applicant, to be taxed, if not agreed.