This case concerns two applications filed by the respondents - one to strike out the appellant's Notice of Appeal on various grounds, and another for security for costs in the sum of $60,000 USD if the Notice of Appeal is not struck out.
Background
The appellant entered into an agreement to purchase land and a business from the respondents. The appellant later proposed varying the agreement by assuming an existing debt instead of paying the balance of the purchase price. Negotiations broke down, and the respondents terminated the agreement, leading to forfeiture of the appellant's deposit. The appellant filed proceedings seeking specific performance of the varied agreement.
Court Proceedings
The Chief Justice ruled against the appellant on January 21, 2022. The appellant filed a Notice of Appeal on March 9, 2022, which the respondents argued was out of time and did not specify the relief sought. The respondents also claimed it was an abuse of process to challenge a finding based on the appellant's admission.
Submissions
The respondents argued the Notice of Appeal was filed outside the 28-day limit under the Court of Appeal Ordinance and should be struck out. The appellant contended that time started from when the written judgment was delivered on February 11, 2022. Regarding security for costs, the respondents cited the appellant's residence outside the jurisdiction and failure to pay a previous costs order. The appellant argued there was no evidence of obstacles to enforcement.
Outcome
The court analyzed the inconsistencies between the Ordinance and the Court Rules regarding time limits and procedures for filing a Notice of Appeal. It concluded that the strict regime under the Ordinance must be followed, with time running from the pronouncement of the order, not its perfection. However, the court granted an extension in this case due to the uncertainties. It found no abuse of process in challenging the court's finding and allowed amending the Notice of Appeal. Regarding security for costs, the court considered the appellant's non-residence, previous non-payment, and the respondents' compliance with procedural requirements, ordering security of $60,000 USD.
The key issues addressed in the judgment were whether the Notice of Appeal was filed out of time, whether there is a difference between a Notice of Appeal and Notice of Intention to Appeal, whether the Court of Appeal Rules are inconsistent with the Ordinance, whether the appeal is an abuse of process, and whether the respondents are entitled to security for costs. The court found the Notice of Appeal was filed out of time but granted an extension. There is no difference between a Notice of Appeal and Notice of Intention to Appeal. The Ordinance takes priority over inconsistent Rules. The appeal is not an abuse of process. The respondents are entitled to $60,000 USD in security for costs.