Tang Chai on and Anther v. Tang Sing Ki and Another

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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R E A S O N S   F O R   D E C I S I O N

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1.In a decision handed down on 6 April 2016 (“Apr 2016 decision”), the defendants’ application for:

(a) extending the time to appeal against the judgment dated 8 May 2015;

(b) a stay of the part of the said judgment enabling the plaintiffs to sell one lot of land;

(c) leave to adduce fresh evidence on appeal,

was refused.

2.The defendants considered the said refusal was wrong, and took out this application seeking leave to appeal against it.  At the end of the hearing, the leave application was also refused.

3.The reasons for the refusal appear below.

4.For convenience, unless otherwise expressly so stated, the same abbreviations used in the Apr 2016 decision will be used below.

5.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.

6.The grounds in support of this application can be summarized as:

(1) the Apr 2016 decision placed an unduly high burden on the younger brothers regarding the merits of the proposed appeal;

(2) the Apr 2016 decision placed too little weight on the relatively short delay, on the good reason for the delay, and on there being no prejudice having been caused to the elder brothers;

(3) the Apr 2016 decision did not consider the contemporaneous correspondence in full;

(4) the “equitable fraud” committed against the Tso and Tong has not been investigated into.

7.None of the above grounds has any merit.

8.As regards para 6(1) above:

(a) the correct legal test has been stated (para 4 and 12, the Apr 2016 decision);

(b) the grounds put forth in the time extension application were rejected because they have “no substance”, were “unmeritorious”, or “groundless” (para 11, 13 and 14, the Apr 2016 decision).

9.As regards para 6(2) above:

(1) the correct legal test has been stated (para 4, the Apr 2016 decision);

(2) both the length of, and the reasons for, the delay have been expressly discussed and determined (para 5 to 6, the Apr 2016 decision);

(3) the refused was not based on any prejudice caused to the elder brothers.

10.As regards para 6(3) above, the point has been expressly discussed and determined (with reasons) (para 7(3) and (4), 13 to 14 and 19 to 23, the Apr 2016 decision).

11.Finally, as regards para 6(4) above, the point has also been expressly discussed and determined (with reasons) (para 7(1) and (2), 8 to 10 and 12, the Apr 2016 decision).

12.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 reasons for 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.

Mr Vincent Lam, instructed by Cham & Co, for the plaintiffs

Mr George Chu, instructed by Shum Wong & Co, for the defendants