Li Yuen Yam and Another v. Grant Gazdig

DCCJ 21/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 21 OF 2016

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DECISION

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1.The plaintiffs are and were registered owners of the premises known as Suite 2901, 29^th Floor, J. Residence, No. 60 Johnston Road, Hong Kong (“Premises”). The defendant was the former tenant of the Premises. The plaintiffs are now suing the defendant for, inter alia, rent in arrears under a tenancy agreement made between the parties on 20 October 2014.

2.The matter before me concerns the breach of an unless order made by Master D. To on 20 June 2017.  Paragraph 1 of that Order (“Unless Order”) reads –

“1. Unless by 4:00pm on 4 July 2017 the Plaintiffs file and serve their List of Documents (together with a copy of each of the documents referred to therein), the Plaintiffs be debarred from adducing any documentary evidence.”

3.There is no dispute that the plaintiffs failed to comply with the Unless Order.  On 4 July 2017, the plaintiffs took out a summons for extension of time (“Time Summons”).  The extension sought had not been specified in the Time Summons.  An affirmation of Li Yuen Yam (“Madam Li”), the first-named plaintiff, was filed in support at the same time (“First Affirmation”).  In it, Madam Li referred to her leaving for Xian on 6 May 2017 and her returning to Hong Kong, via Shenzhen, on 28 June 2017.  No documents showing the trips taken were exhibited.

4.Before the Time Summons was heard, a List of Documents (“LOD”) was filed by the plaintiffs on 14 July 2017, without leave of the court.  The Time Summons was heard by Master To on 21 July 2017 who dismissed the application and made no order as to costs (“Time Summons Order”).  The sealed Order shows that the second-named plaintiff and the defendant did not attend this hearing on 21 July 2017.

5.The plaintiffs then took out a summons for relief of the sanction under the Unless Order on 25 July 2017 (“Relief Summons”).  Again, an affirmation of Madam Li was filed in support of this Relief Summons (“Second Affirmation”).  In it, Madam Li gave two reasons for the default of the plaintiffs in compliance with the Unless Order: (1) Madam Li had forgotten about the date of hearing; and (2) she did not open her mail in time upon her return to Hong Kong on 28 June 2017, and so she did not have enough time before 30 June 2017.

6.The Relief Summons was heard by Master To on 11 August 2017.  She dismissed the application.  The sealed Order shows that neither the second-named plaintiff nor the defendant attended this hearing on 11 August 2017.

7.On 17 October 2017, the 1^st named plaintiff filed a notice of appeal in respect of the Time Summons Order.  In her handwritten Notice of Appeal, she asked for the reversion of the decision made on 21 July 2017 based on her medical condition, stating that she was not able to attend the court because of medical reason.  There is also an affirmation of Madam Li filed in support of the Notice of Appeal (“Third Affirmation”).  In this Third Affirmation, Madam Li stated that she was not able to attend the court hearing on 20 June 2017 because she had severe eye pain and was not able to see clearly.  The medical records of her consultation at a hospital in the Mainland China on 19 June 2017 were shown as exhibits.  The records indicate that Madam Li had problems with her right eye only but not her left eye.

8.This is the hearing of the appeal.  I should add that there has been no appeal against the Unless Order or the decision of Master To in respect of the Relief Summons. 

9.In terms of the procedural history relating to the filing of the LOD, I note that on 28 March 2017, at the hearing of a Case Management Summons, Master To directed the parties to file their LOD on or before 18 April 2017.  The hearing of the Case Management Summons was adjourned to 20 June 2017.  It was at this adjourned hearing on 20 June 2017 that the Unless Order was made. 

10.Order 58 rule 1 of the Rules of District Court governs the procedure on appeal from the decision of a master to a judge.  The Order provides as follows –

“Appeals from master to judge in chambers (O. 58, r. 1)

(1) Except as provided by rule 2 and Order 32 rule 17, an appeal shall lie to a judge in chambers from any judgment, order or decision of a master, irrespective of whether the judgment, order or decision was given or made on the basis of written submissions only or after hearing.

(2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend before the judge on a day specified in the notice or as on such other day as may be directed.

(3) Unless the Court otherwise orders, the notice must be issued within 14 days after the judgment, order or decision appealed against was given or made and must be served within 5 days after issue and an appeal to which this rule applies shall not be heard sooner than 2 clear days after such service.

(4) No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”

Appeal out of time

11.According to paragraph (3) of Order 58 rule 1, a notice of appeal has to be issued within 14 days after the order appealed against, unless the court otherwise orders.  It is apparent from one look at the date of the Notice of Appeal that it was issued out of time.  It had taken the plaintiffs almost 3 months to file the notice.  There is no application from the plaintiffs for extension of time for the late filing of the Notice of Appeal.  At the hearing today, Madam Li said, being a layman, she was not aware of the time limit.  There is no ground for me to hear the appeal if an extension of time for filing the Notice of Appeal is not applied for and granted. There is no separate set of rules that applies to lay parties.  For that reason alone, the appeal ought to be dismissed.

Further evidence

12.Another matter is the further evidence now sought to be adduced by the plaintiffs, in the form of the Third Affirmation.  The severe eye pain referred to by Madam Li and the medical records are not matters which have occurred after the date of the Time Summons Order. 

13.On this, the provision of Order 58 rule 1(4) has specified that such evidence cannot be received except on special grounds.  There have been clear judicial comments pointing out that the rules for adducing evidence apply to all litigants, whether they act in person or are legally represented[1].  The plaintiffs have made no attempt to show that there are any grounds, not to mention special grounds, for adducing the further evidence.  I do not therefore see any basis for me to consider it.

14.Even if I were to have regard to the matters covered by the Third Affirmation, I fail to see how Madam Li can claim to be unable to see clearly when the medical records show that there was nothing wrong with her left eye.  The consultation notes made no reference whatsoever to her requiring any rest. 

15.Further, the medical records were submitted to show that Madam Li could not attend the hearing on 20 June 2017, but nothing turns on her failure to attend that hearing for the purpose of this appeal.  As mentioned above, there has been no appeal against the Unless Order.  I do not see how the failure of Madam Li to attend the hearing on 20 June 2017 could have been a ground for dismissing the application for extension of time under the Time Summons.     

Merits

16.For the sake of completeness, I have considered the merits of the appeal as well.  Based on the evidence in the First Affirmation, I only know Madam Li left for Xian on 6 May 2017 and returned to Hong Kong on 28 June 2017.  That does not even begin to show why an extension of time should be granted. 

17.The Unless Order requires the plaintiffs to file their LOD by 4 July 2017.  The First Affirmation only gave an account of the travel done by Madam Li, but made no mention of why Sze Chi Wai Rykiel (“Madam Sze”), the second-named plaintiff, was not called upon to do the work.  There has been no reason given at all as to why the LOD could not have been prepared by Madam Sze. 

18.The plaintiffs seem to suggest that I should take note of the rather short time frame between 28 June 2017 and 4 July 2017, the deadline under the Unless Order.  Even disregarding the two days of 28 June 2017 and 4 July 2017, the plaintiffs still had 5 full days to work on the LOD.  There is no evidence that any efforts had been made to try to meet the deadline during these 5 days. 

19.Nonetheless, the court should not only look at the 5 days in question.  As pointed out in the above, Master To gave directions back in March 2017 for the filing of the LOD by the parties. The plaintiffs therefore had more than 3 months to work on the LOD.  If a party leaves it up to the very last moment to start working, it has itself to blame for the consequences of failing to meet the deadline applicable.  In considering whether to grant a time extension, the court will have to consider whether there are good reasons for failing to meet the deadline.  There are no reasons, not to say good ones, to account for the period before the travel by Madam Li to Xian.

20.Being away from Hong Kong is per se not a good reason for not working on the LOD.  Only 7 items are set out in Part 1 of Schedule I of the LOD filed by the plaintiffs, four of which (the land search record, the two tenancy agreements and the demand letter) do not require digging up or combing through at all.  At this day and age, with the help of modern technology, it is baffling why the LOD, or at least part of it, cannot be drawn up because of the mere absence from Hong Kong.  

21.There is also the legal consequence of failing to comply with a preemptory order.  To seek sanction, the proper course is for the plaintiffs to seek relief.  This is provided in Order 2 rule 4 of the Rules of District Court, as reproduced below –

“4. Sanctions have effect unless defaulting party obtains relief (O. 2, r. 4)

Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.”

22.That is what the plaintiffs sought but failed to achieve by the Relief Summons filed on 25 July 2017. There is however no appeal against the Order that dismissed that application.   The plaintiffs cannot bypass the provisions of Order 2 rule 4 by an appeal against the Time Summons Order.

23.For the above reasons, the appeal is dismissed.  As the defendant had not appeared at the hearing, on a nisi basis, I make no order as to costs.

The 1^st named plaintiff appeared in person

The 2^nd named plaintiff not represented, being absent

The defendant not represented, being absent