Park Chul Soo v. Swee Kheng Building Material Co Ltd

CACV 318/2018

[2019] HKCA 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 318 OF 2018

(ON APPEAL FROM APPLICATION TO SET ASIDE A

STATUTORY DEMAND NO 37 OF 2017)

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Before: Hon Cheung, Yuen and Au JJA in Court

Dates of Applicant’s written submissions: 27 May and 14 June 2019

Date of Respondent’s written submissions: 6 June 2019

Date of Judgment: 15 July 2019

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.The Applicant has applied by Notice of Motion filed on 24 April 2019 for leave to appeal to the Court of Final Appeal from our Judgment given on 27 March 2019. In that Judgment, we had dismissed his appeal from a judgment of Ng J given on 19 June 2018 dismissing his application to set aside a statutory demand.

2.1The application for leave is expressly made solely on the “or otherwise” ground[1].  In the Applicant’s submissions, Mr Toby Brown indicated his awareness that this court’s usual practice in applications under this ground is to dismiss the application and to leave it to the applicant to apply for leave to the CFA.  He wrote: “if the same position is adopted in respect of this appeal, the Court is invited to dismiss the appeal prior to receiving the Respondent’s skeleton, in order to save the Respondent’s costs”[2]. 

2.2However no application for such directions was made, whether at the time the Notice of Motion was filed or subsequently.  Accordingly the default protocol under PD2.1 §3(b) applied, and the Respondent duly filed its submissions in opposition, followed by the Applicant’s submissions in reply.

3.Having read the grounds of appeal and the submissions, we do not consider this appeal is suitable for leave to be given on the “or otherwise” ground.  Accordingly we refuse leave with an order that the Applicant should pay the Respondent’s costs which, given the simplicity of the application, we summarily assess at $60,000.

Mr Toby Brown, instructed by Shum & Co, for the applicant

Mr Joseph Wong, instructed by SW Wong & Associates, for the respondent