Chung Yoon Bae v. Rehman Ateeq-ur

CAMP 107/2018 AND CAMP 108/2018

[2018] HKCA 741

CAMP 107/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 107 OF 2018

(ON AN INTENDED APPEAL FROM DCCJ NO 3078 OF 2011)

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CAMP 108/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 108 OF 2018

(ON AN INTENDED APPEAL FROM DCCJ NO 3113 OF 2012)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.We have before us two applications in separate proceedings seeking leave to appeal against the assessment of damages made by HH Judge M K Liu. For the reasons which appear below, we find it convenient to deal with the applications together in one judgment even though they were made in respect of separate actions in the District Court involving different plaintiffs and defendants.

2.CAMP 107/2018 is concerned with DCCJ 3078/2011, an action brought by Chung Yoon Bae (the registered owner and occupier of Flat B, 7^th Floor, Harilela Mansion, No 81 Nathan Road, Kowloon) against Reheman Ateeq‑Ur (the registered owner of Flat B, 8^th Floor), claiming damages in respect of the water seepage from Flat 8B to Flat 7B.  Judgment on liability was entered against the defendant on 11 November 2011.  The assessment of damages was heard before the judge on 10 and 13 April 2018.  The judge handed down his judgment on assessment on 19 April 2018 and awarded damages of $1 million[1] to the plaintiff with interest and costs.  The defendant sought leave to appeal against the assessment and the judge refused leave in a decision handed down on 20 June 2018.  The defendant issued the summons in CAMP 107/2018 on 11 July 2018 for extension of time for leave to appeal, for leave to appeal if extension of time is granted, and for stay of execution pending appeal if leave to appeal is granted[2].

3.CAMP 108/2018 is concerned with DCCJ 3113/2012.  The action was brought by 886 HK Limited (the registered owner of Flat A, 7^th Floor, Harilela Mansion, No 81 Nathan Road, Kowloon) and Ms Kim Tsang Jung (the occupier of Flat 7A) against Amjad Nadeem (the registered owner of Flat A, 8^th Floor) for damages in respect of the water seepage from Flat 8A to Flat 7A.  Judgment on liability was entered against the defendant on 17 July 2013.  The assessment of damages was heard before the judge on 11 and 13 April 2018.  The judge handed down his judgment on assessment on 19 April 2018 and awarded damages of $689,300 to the 1^st plaintiff and $186,000 to the 2^nd plaintiff, with interest and costs.  The defendant sought leave to appeal to the Court of Appeal and leave was refused by the judge in a decision handed down on 20 June 2018.  The defendant issued the summons in CAMP 108/2018 on 11 July 2018 seeking extension of time for leave to appeal, and leave to appeal if extension of time is granted.

4.Counsel for the applicant in both applications, Mr Hugh Rowan Hunter, indicated that he would pursue only one ground in the intended appeal in both matters and this ground is identical.

5.Having considered the papers, we exercise our power under Order 59 rule 2A(5) to determine both applications without an oral hearing.

6.The single ground of appeal reads as follows:

“There was an error of law in respect of discharging the evidential burden. In making this order the court relied solely on the testimony of [the plaintiff in DCCJ 3078/2011; the 2^nd plaintiff in DCCJ 3113/2012]. This was not sufficient to prove the allegations of the Plaintiffs as required in law.”

7.Mr Hunter had also relied on this ground in the previous application for leave to appeal before the judge and this was addressed fully by the judge in his leave decisions of 20 June 2018.

8.The deadline for taking out the leave application in both matters expired on 4 July 2018.  The defendant in both matters was late by one week.

9.An affirmation of the defendant’s solicitor, Mr Muhammad Kamran Chaudhry, was filed in each instance to explain the delay.  The reasons are identical.  The defendant in each case lives in Pakistan and needed a considerable time to consider the legal advice.  The defendant required further time for settlement of the legal costs for appeal and discussing the application with family members in Pakistan.  There was also the intervention of a public holiday.  And the defendant’s lawyers needed time to take “full and complete” instructions on the factual background and the appeal application.

10.We note that the same team of counsel and solicitors acted for the defendant in each matter in the assessment of damages hearing and the leave application heard by the judge.  The need to take “full and complete” instructions on the factual background is clearly not a justifiable reason for the delay.

11.The most important factor for our consideration whether to grant an extension of time to apply for leave to appeal is the merits of the intended appeal, as the delay of one week is a short one.

12.As we have mentioned above, the judge has addressed the intended ground of appeal fully in §7 of each of his decisions refusing leave to appeal.  It is not necessary to repeat the reasons.  The judge’s reasoning cannot be faulted.  The intended appeals to challenge the findings of fact of the trial judge are bound to fail.

13.We dismiss the summons in respect of each of the proceedings.  As the applications are wholly without merit, we make an order under Order 59 rule 2A(8) that no party may request the determination to be considered at an oral hearing inter partes.

14.There is no reason to depart from the general rule that costs should follow the event.  So we order the defendant in each of the proceedings to pay the costs of the plaintiff or plaintiffs for the present applications.

15.A statement of costs was submitted by the solicitors for the plaintiff/plaintiffs seeking costs in the sum of $104,910 in each application.  We consider the amount of costs sought to be excessive.  The same team of lawyers was retained by the plaintiff/plaintiffs in the assessment of damages and the leave application before the judge.  They should be familiar with the background.  The same arguments were made before the judge in respect of the single ground of appeal relied on in the present applications.  The contents of the papers in both applications are identical.  We tax down the costs of the plaintiff/plaintiffs to $44,810 in each instance.

16.The costs order and gross sum assessment in each application are orders nisi. They will be made absolute if there is no application for variation by any party within 14 days of the handing down of this judgment.

Written submissions by Mr Ryan Law, instructed by Joseph Leung & Associates, for the Plaintiff in CAMP 107/2018 and the Plaintiffs in CAMP 108/2018 (Respondents)

Written submissions by Mr Hugh Rowan Hunter, instructed by Lai & Chaudhry Solicitors LLP, for the Defendant in CAMP 107/2018 and the Defendant in CAMP 108/2018 (Applicant)