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This was an application by the Defendant for an extension of time to appeal against a judgment. In dismissing the application, the Court considered the legal principles governing such applications for extension of time to appeal and highlighted the philosophy of the Civil Justice Reforms.
The crux of the matter was whether a declaration made by the Defendant in 2001 constituted a declaration of trust in which the Defendant held the shares of a joint venture company on behalf of the Plaintiffs and himself. The trial took place in June 2010. By then the Defendant was acting in person. The Honourable Mr. Justice Chan made a declaratory judgment in favour of the Plaintiffs and ordered the Defendant to pay the costs of the proceedings to the Plaintiffs.
On 21 July 2010, the Defendant issued a summons for an extension of time to appeal against the judgment. In exercising its discretion whether to extend time to appeal, the Court conducted a balancing exercise of the following factors: (i) the length of the delay; (ii) the reasons for the delay; (iii) the chances of the appeal succeeding; and (iv) the prejudice to the other party to the appeal. The Court held that the 19-day delay to appeal cannot be said to be a minimal or short delay. The Defendant’s reason for the delay was essentially that he was undecided whether to proceed. The Court held that it was obvious that this cannot be an acceptable reason to support an application for extending the time to appeal. In any event, the Court was not satisfied that the Defendant’s intended grounds of appeal disclosed a reasonable prospect of success. Turning to the philosophy of the Civil Justice Reforms, the Court stressed the importance of identifying issues at an early stage of the proceedings:
“The Civil Justice Reforms emphasize the need to identify issues at an early stage and the making of prompt decisions as to which issues need full investigation and trial (O.1A r.4). What the Defendant says in the ground of appeal that the judge should have done at trial – advise the Defendant to ask for an adjournment of the trial, and presumably grant it so that there could be amendment of pleadings on foreign laws, instructions given for expert witnesses on foreign laws, etc – would have been directly contradictory to the philosophy of the CJR.”
The Defendant’s application was accordingly dismissed with costs to the Plaintiffs. Further, the Court remarked that the present case was an appropriate one where the Plaintiff should apply for a summary assessment of costs pursuant to the new O.62, r.9A of the Rules of the High Court (Cap.4A, Sub.Leg.).
Hong Kong Dispute Resolution Bulletin: For full analysis of this case subscribe to the Sweet & Maxwell HKDRB, produced in association with Clifford Chance.
This article is available in [2010]10 HKDRB.
This case illustrates the Court’s post-CJR approach to the new O.59 of the Rules of the High Court in the context of a late application for appeal against two interlocutory orders brought by the Defendants.
The Defendants applied for leave to appeal against a disclosure order after the expiration of the 14-day period stipulated in O.59, r.2B(1) of the Rules of the High Court (Cap. 4A), arguing that they had already made full disclosure of their assets already as required by an earlier Court Order for disclosure. It was also argued that the appropriate costs order should have been costs in the cause of the appeal and not costs to be paid to the Plaintiff forthwith.
The Honourable Mr. Justice To provided further guidance regarding the application of O.59 and commented:
“Under this new scheme introduced by the CJR into Order 59, leave to appeal against an interlocutory judgment or order may be made to the court below and so far as is practicable to the judge or master against whose judgment or order leave to appeal is sought: rule 2B(1) and(2). If that application is refused, the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of refusal: rule 2B(3) […] Rule 15 gives the court below the power to extend or abridge the period for serving notice of appeal under rule 4 on application made before the expiration of that period.”
In pursuit of the underlying objectives of the CJR, the Honourable Mr. Justice To dismissed the application for extension of time to apply for leave to appeal, for leave to appeal and for stay of execution of the Orders with costs. It was ordered that costs should follow the event and be paid to the Plaintiff forthwith.
Hong Kong Dispute Resolution Bulletin: For full analysis of this case subscribe to the Sweet & Maxwell HKDRB, produced in association with Clifford Chance.
This article is available in [2010] 5 HKDRB.
In this case, the Honourable Justice Lam considered two late applications for leave to adduce expert evidence made shortly before trial.
The Plaintiff claimed that the Defendant failed to carry out water proofing works at the lavatories in a hotel under a building contract, resulting in damages caused by water leakage. It commenced an action against the Defendant in 2008. The action was set down for trial on 22 October 2009, and the trial was scheduled to start on 14 May 2010 with four days reserved.
After the case had been set down for trial, both the Plaintiff and the Defendant applied for leave to adduce expert evidence – the Defendant issued a summons for leave to call an expert on 24 March 2010; the Plaintiff issued a summons for leave to call an additional expert on 28 April 2010.
The Honourable Justice Lam dismissed both late applications for leave to adduce expert evidence.
Hong Kong Dispute Resolution Bulletin: For full analysis of this case subscribe to the Sweet & Maxwell HKDRB, produced in association with Clifford Chance.
This article is available in [2010] 3 HKDRB.
