



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



A.L.B. v. Park,









2015 BCCA 37




Date: 20150123

Docket: CA041732

Between:

A.L.B.

Respondent

(Plaintiff)

And

Pius Park

Appellant

(Defendant)




Before:



The Honourable Madam Justice D. Smtih

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Willcock




On appeal from: an
order of the Supreme Court of British Columbia dated
April 16, 2014 (
A.L.B. v. Park
, 2014 BCSC 1982, Vancouver Docket No.
S127695)

Oral Reasons for Judgment




No one appearing on behalf of the Appellant:






Counsel for the Respondent:



I.G. Nathanson, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 23, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 23, 2015








Summary:

The respondent applies for
an order dismissing the appeal as abandoned for the failure of the appellant to
comply with an order requiring him to post security for the costs of the trial
in the amount of $100,000 within 21 days. The respondent also applies for an
order that $110,000 paid into court pursuant to an earlier order that required the
appellant to post security for the trial judgment of $100,000, and for the appeal
costs of $10,000, be paid out to herself. Held: Appeal dismissed as abandoned
with costs of the appeal to the respondent. Application for the payment out of
court of $110,000 granted in part: the $100,000 paid into court as security for
the trial judgment shall be paid out of court to the respondent; the $10,000
security posted for appeal costs shall be held and available to be paid out of
court to the respondent in the amount of the appeal costs as taxed.

[1]

D. SMITH J.A.
: The respondent applies for an order dismissing the
appeal as abandoned for the failure of the appellant, Pius Park, to comply with
an order of December 17, 2014, that required Mr. Park to post security for the
costs of the trial in the amount of $100,000 within 21 days. The respondent
also applies for an order that $110,000 paid into court pursuant to an earlier
order that required Mr. Park to post security for the trial judgment of
$100,000 and security for the costs of the appeal of $10,000, be paid out to
herself.

[2]

The underlying action relates to a damages claim for the sexual assault
of the respondent by Mr. Park. On April 16, 2014, a jury found Mr. Park liable
for the assault and awarded the respondent damages of $152,000 for
non-pecuniary damages, $236,000 for past wage loss, and $2,544.11 for special
damages, for a total award of $390,544.11. On April 17, 2014, Mr. Park filed a
notice of appeal.

[3]

On August 8, 2014, Mr. Park was ordered to post security for the costs
of the appeal in the amount of $10,000 and for the trial judgment in the amount
of $100,000 based on a finding that there was a serious question as to whether
the respondent would be able to recover the amount of the judgment and costs of
the appeal. The appellant now resides in South Korea where he moved when the
sexual assault allegation arose and where he has deposed that he is now
employed as a senior tax manager for KPMG South Korea. He also has no apparent
assets in British Columbia. With respect to that application, the chambers
judge found that the order requested would not hinder the appellants ability
to bring the appeal because Mr. Park had deposed that his parents would pay for
his legal fees and the costs of the appeal but would not pay security for the
trial judgment or trial costs. The application for security of the trial costs
was adjourned pending the hearing of the costs application before the trial
judge. On August 26, 2014, Mr. Park posted the $110,000 security ordered.

[4]

On October 22, 2014, the trial judge ordered Mr. Park to pay special
costs of the trial in the amount of $254,426.33 based on what he found to be
reprehensible conduct by Mr. Park during the course of the trial.

[5]

On December 17, 2014, Madam Justice Bennett ordered Mr. Park to post
$100,000 security for the trial costs within 21 days. Mr. Park has not complied
with the order and has filed no material in response to this application. We
are advised that Mr. Chamberlain, who represented Mr. Park in these
proceedings, has received no instructions.

[6]

In these circumstances I am satisfied that the order that the appeal be
dismissed as abandoned should be granted. I would further order that:

a)

the
$100,000 paid into court as security for the trial judgment be paid out of
court to the respondent;

b)

Mr. Park pay the
costs of the appeal to the respondent.

[7]

The $10,000 security posted for appeal costs shall be held and available
for payment out of court to the respondent in the amount of the appeal costs as
taxed.  Any excess funds must be subject to further proceedings.

[8]

BENNETT J.A.
: I agree.

[9]

WILLCOCK J.A.
: I agree.

The
Honourable Madam Justice D. Smith


