Chiu Kwai Ping v. Yip, Tse & Tang (A Firm)

HCA 2159/2016

[2019] HKCFI 2592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2159 OF 2016

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DECISION

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1.On 30 August 2019, this court handed down the decision in respect of the defendant (“YTT”)’s application to strike out the plaintiff (“Chiu”)’s claim on the ground of limitation (“the Decision”). I dismissed the application with costs. YTT applies for leave to appeal.

2.Leave would not be granted unless the proposed appeal has a reasonable prospect of success or for some other reason should in the interest of justice be heard by the appellate court: section 14AA (4) of the High Court Ordinance, Cap 4.  Reasonable prospect has to be more than fanciful, though not necessarily probable: see SMSE v KL [2009] 4 HKLRD 125.

3.Chiu claims that YTT was negligent in failing to advise and to register her interest in the property that her divorced husband was supposed to convey to her pursuant to the order of the court in their matrimonial proceedings.  The alleged negligence is disputed as a matter of fact.  However, YTT says the claim is in any event time-barred, but Chiu disagrees.

4.The determination of the limitation defence depends on when the sole cause of action in negligence accrued.  The key question to answer is whether Chiu suffered actual and real damage upon YTT’s alleged negligence or only when Chiu’s interest in the property became subject to encumbrances actually created by her ex-husband much later.  I answered the question according to my analysis of the relevant case law, including Bell v Peter Browne [1990] 2 QB 495, and my application of the test for striking out in the circumstances of this case.

5.The test for striking out is stringent.  Having said that, I am prepared to accept that it would indeed only take the appellate court to adopt a different understanding of the principles of the relevant case law from mine to come to a conclusion that would change the fate of this action.  I am prepared not to rule out the prospect of that.  I am also prepared to accept that the question of how the relevant case law should be properly understood and applied should be placed before the appellate court.

6.I give leave to appeal on the proposed grounds set out in draft notice of appeal annexed to the summons.

7.Costs of the application in the cause of the appeal.

Mr Lawrence Law, instructed by Carol Lam & Co, assigned by Director of Legal Aid, for the Plaintiff

Mr Erik Shum, instructed by Wong, Hui & Co, for the Defendant