Tele-Art Inc. Appellant v Nam Tai Electronics Inc. Respondent v Bank of China Intervening Creditor

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: SATROHAN SINGH JA
• Judgment Date: 21 June 1999
• Neutral Citation: VG 1999 CA 4,[1999] ECSC J0621-2
• Docket Number: CIVIL APPEAL NO.7 OF 1998
• Date: 21 June 1999

[1999] ECSC J0621-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Albert Matthew Justice of Appeal (Ag.)

CIVIL APPEAL NO.7 OF 1998

Between:

Tele-Art INC

Appellant

and

Nam Tai Electronics INC

Respondent

and

Bank of China

Intervening Creditor

Appearances:

Mr. Gerald St. C. Farara Q.C. for the Appellant

Mr. John Eric I. Carrington for the Respondent

SATROHAN SINGH JA

1 On December 7th 1998, during the pendency of the above captioned appeal, this Court made an order that "the appellants do provide security for costs of the appeal in the sum of $75,000: within 7 days of this Order…." On December 14, 1998, the appellant duly compiled with the aforementioned order. On January 25, 1999, this Court dismissed the appellant's appeal in the substantive matter and ordered that the appellant pay the respondent's costs of the appeal from its assets.

2 Elma Yuen is a director and a shareholder of the appellant and the person who was responsible for initiating the dismissed appeal. This is an application brought by the appellant for an order that the $75,000 lodged as security for costs be paid out to Elma Yuen. In the application, the appellant claimed that Yuen had provided the security from his own funds and not from the appellant's assets. The available evidence show that the $75,000 may in fact have come, from Elma Yuen personally.

3 The issue before us is whether the $75,000 should be paid to Elmer Yuen or the respondent and whether there was any ambiguity in the Order for costs made by this Court in the substantive appeal.

THE ISSUE

4 The order of this Court was that the appellant, from its assets, pay the respondent its costs of the appeal. That language in my opinion is clear and simple. There is no room for ambiguity. The order for Security for Costs was made against the appellant, and the appellant, without more, complied with that order and lodged $75,000 with the Court.

5 Prima facie therefore, that sum must be categorized as assets of the appellant company and as such would stand charged for any payment of costs made against the appellant. In the appellant's application to pay out, Elmer Yuen has not personally testified, and he did not make the application. The accepted evidence however is that he is a director of the appellant and that he was the person prosecuting the appeal for the appellants.

6 In my judgment even if it can be said that the $75,000: came from his personal self, when that money was lodged by the appellant, it became a part of the assets of the appellant having regard to the order which asked the appellant to lodge the security. Yuen's greivance therefore, if any, would have to be against the appellant.

7 An order for security for costs means what it says, to secure the costs of the respondent should an order for costs be made in its favour. It would indeed be a grave injustice and a possible fraud by an appellant to a recipient of an order for costs, if a Court without good reason, were to deprive that recipient of that benefit, especially in the circumstances of this case where Yuen was not only a director of the appellant but also the appellant's activist in the appeal. It would make nonsense of the order for security.

CONCLUSION

8 The application to pay out the $75,000: to Elmer Yuen is refused with costs to the respondent to be taxed if not agreed and to be paid by the appellant. The Order originally made by Benjamin J in this application on March 19, 1999 is by consent, set aside for want of jurisdiction.

SATROHAN SINGH JUSTICE OF APPEAL

9 I concur

ALBERT REDHEAD JUSTICE OF APPEAL

10 I concur

ALBERT MATTHEW

11 JUSTICE OF APPEAL (AG.)

[1999] ECSC J0621-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Albert Matthew Justice of Appeal (Ag.)

CIVIL APPEAL NO.7 OF 1998

Between:

Tele-Art INC

Appellant

and

Nam Tai Electronics INC

Respondent

and

Bank...