Tang Chai on and Another v. Tang Sing Ki and Another
Read the full judgment text of HCA 207/2013 on BabelCite. This High Court CFI judgment was delivered on 6 April 2016.
1. Judgment was entered in the plaintiffs’ favour against the defendants in a judgment handed down on 8 May 2015 (“ the 2015 judgment ”). Unless otherwise expressly so stated, the same abbreviations used in the 2015 judgment will be used below.
Cites 3 cases
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HCA 207/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 207 OF 2013 ____________
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______________ D E C I S I O N ______________ Introduction 1.Judgment was entered in the plaintiffs’ favour against the defendants in a judgment handed down on 8 May 2015 (“the 2015 judgment”). Unless otherwise expressly so stated, the same abbreviations used in the 2015 judgment will be used below. 2.This decision concerns the younger brothers’ application for an extension of time to file and serve their notice of appeal against the 2015 judgment (the time extension application was made on the last day of the prescribed appeal period). There is also an application for stay of execution of the part of the 2015 judgment enabling the elder brothers to sell one lot of land (para 2, the 2015 judgment). 3.The background leading to this action (and the 2015 judgment) has been summarized at para 3 to 7 of the 2015 judgment and will not be repeated here. The time extension application 4.The relevant legal principles are settled (and undisputed). Whether to extend time is a matter of discretion; in exercising that discretion, the factors commonly taken into account are:
5.The younger brothers explain that the delay was caused by the obstructive conduct of their former solicitors (their failure to hand over the court documents). This however does not amount to a valid reason because the same information could have been obtained from other sources (as has happened in this action (the new solicitors copied the information from the court file(s))). 6.Having said that, as has been noted above, the delay (up to the time of the time extension application) has not been lengthy. 7.The prospect of success of the intended appeal is a matter worthy of attention. To understand that, one has to start from the grounds of appeal set out in the 2nd draft notice of appeal (of March 2016 (which replaces the original draft attached to an affirmation in June 2015)). The grounds can be categorized into the following groups:
8.It was observed in the court of appeal’s decision in Dah Sing Insurance Services Ltd v Gill Gurbux Singh CACV 255/2012 (27 April 2015):
9.The younger brothers (correctly) concede that the grounds summarized in para 7(1), (2), (5) and (6) have not been pleaded; no evidence has therefore been adduced in relation thereto; nor have these been put forth in the parties’ (opening or closing) submissions. 10.Para 7(1) above (the nature of the Tso and the Tong, the scope of duty of their managers, and whether the managers have breached their duties and in effect conspired with anyone (especially the elder brothers and/or younger brothers) to defraud the Tso and/or the Tong) is a matter of mixed law and fact. The same applies to para 7(2) above (illegal contract(s)) (such as the nature of the illegality, the identity of the contracting parties and the legal consequences arising from any such illegality), para 7(5) (order for the sale of co-owned properties) and para 7(6) (time-bar). 11.Further, in relation to para 7(6) above, it is clear that the income and expenditure items in question were (and formed) part of the ordinary course of business of the partnership (the partnership being that as claimed by the elder brothers (and found in the 2015 judgment)). As such, they were in the nature of a “running account”, the earliest time of accrual of which would be the dissolution of the partnership: see also ss 22, 30, 45 and 46, Partnership Ordinance (Cap 38). This is probably the reason why the time limitation argument was not raised earlier. Para 7(6) above therefore has no substance any way. 12.In the light of the above paragraphs, it is highly unlikely the court of appeal will entertain an appeal based on para 7(1), (2), (5) or (6) above. Accordingly, the younger brothers are unable to show a reasonable prospect of success in relation to those grounds. 13.Part 7(3) above is misconceived (because it completely ignores what in fact transpired at trial) and is unmeritorious. During the cross-examination of a plaintiffs’ witness by defence counsel, the elder brothers sought to have the whole of the Jan 2013 letter put into the trial bundle. Defence counsel initially objected, but, after having conferred with the younger brothers and the rest of his legal team, indicated that he would only agree to the use of part of the Jan 2013 letter (which now appears in the trial bundles). When the cross-examination resumed, defence counsel asked a few questions about that part of the Jan 2013 letter and then moved on to other subject matters. 14.Contrary to the complaints now made by the younger brothers, defence counsel:
The complaint that a new and unpleaded case has been introduced by the elder brothers is groundless. As has been made clear in the 2015 judgment, the Jan 2013 letter was introduced to establish two matters:
The stay of execution application 15.This application seeks a stay of execution pending the determination of the intended appeal from the 2015 judgment. 16.As will be set out below, the time extension application is refused. Consequently, this application should be refused as well for the simple reason that there is no pending appeal. 17.An interim stay of execution has been granted on 17 September 2015 pending the determination of the time extension application. Because that application has now been determined, that interim order has now lapsed. Conclusion 18.Both the time extension application and the stay of execution application are refused. Other matters 19.There is also an application taken out by the younger brothers in March 2016 for leave to file and serve two affirmations. These affirmations are in the nature of fresh evidence which the younger brothers wish to use for the purpose of the intended appeal (and hence they are also intended to be used for the time extension application). 20.The affirmations seek to introduce correspondence passing between the younger brothers’ solicitors and the Tso and Tong in 2013. The younger brothers did not make clear whether the correspondence was available to them before (or at the time of) trial (and therefore could have been adduced as evidence at the time of trial). But because the correspondence was made upon their instruction, it should reasonably have been so available. 21.The legal principles concerning fresh evidence intended to be adduced on appeal are settled:
22.The evidence involved clearly cannot surmount the first of the above three factors (para 21(b)(1) above). 23.This application is thus refused. 24.The parties’ written submissions also mentioned various other points. These have not been expressly set out or dealt with above. This is so only because of the need to balance between the length of the decision and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked). To avoid doubt, those other points have also been considered. Costs order nisi 25.There is no apparent reason to depart from the usual rule that costs should follow the event. There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the applications be paid by the younger brothers to the elder brothers. 26.I consider summary assessment of costs to be appropriate. The above costs shall thus be so assessed. For this purpose:
Mr Vincent Lam, instructed by Cham & Co, for the plaintiffs Mr George Chu, instructed by Shum Wong & Co, for the defendants | |||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 207/2013