Li Sau Ying v. Bank of China (Hong Kong) Ltd & Another

CACV000309A/2002

CACV309/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 309 OF 2002

(ON APPEAL FROM HCA NO. 18515 OF 1999)

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Coram: Hon Rogers VP, Le Pichon and Cheung JJA in Court

Date of Hearing: 29 April 2004

Date of Judgment: 29 April 2004

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal out of time from a decision of this Court which was handed down more than a year ago. The order of this Court was sealed on 2 May 2003 but the application for leave to appeal was not made until September of last year, at least some three months out of date.

2.The only explanation for that is said to have been provided in the affirmation of Derek Bin Kay Quan, which was filed on 22 September of last year. I regret to say that that affirmation, in my view, contains no grounds upon which this Court could act to extend the time for appealing. It is devoid of almost any facts as to dates involved. It certainly does not support the argument put forward by Mr Sarony as to impecuniosity preventing the 1st defendant from bringing the appeal. All it says is that the 1st defendant had to consider her finances, without any details at all. That being the case, this application has to be dismissed on that ground , if for no other.

3.I would, however, go on to say that I see no merit in this appeal. Although it is suggested that broad questions arising out of Barclays Bank Plc v O'Brien and Another [1994] AC 180 and Royal Bank of Scotland Plc v Etridge (No. 2) [in this case, the fundamental fact is that this Court did not consider that the 1st defendant had 2002] AC 773 would arise begun to undue influence as properly understood. make out a case of

4.In my view there is no merit for this appeal to go forward.

Hon Le Pichon JA:

5.I agree.

Hon Cheung JA:

6.I agree.

Representation:

Mr Neville Sarony, SC, and Ms Angela Gwilt, instructed by Messrs Quan & Co., for the Plaintiff/Applicant

Mr Ambrose Ho, SC, and Mr Melvin Wong, instructed by Messrs Tsang, Chan & Wong, for the 1st Defendant/Respondent