Chang King To v. Chang King Him Clarence and Another

HCA 1574/2017

[2021] HKCFI 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1574 OF 2017

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DECISION

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1.By a summons on 21 December 2020 (“the December Summons”), KT applies for leave to appeal from my decision dated 8 December 2020 (“the December Decision”)[1]. This decision should be read together with the judgment handed down on 28 October 2019 (“the Judgment”)[2] and the December Decision.

2.In the December Decision, I dismissed KT’s summons dated 9 November 2020, by which KT sought to seek the following order:

(1)  the costs order contained in my order dated 29 August 2019 be set aside and be replaced by an order that Clarence should bear his own costs of his summons filed on 22 August 2019; and

(2)  the taxation of the costs awarded to Clarence in the Judgment be stayed pending the outcome of CACV 514/2019.

3.On 11 January 2021, I directed that the parties should provide written submissions to the court, and the December Summons would be determined on paper without an oral hearing.  Only KT has provided written submissions to the court in the form of a letter dated 15 January 2021.  I have considered those written submissions.

My refusal of the 1^st application

4.Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard^[3].

5.I have set out my reasons for refusing the 1^st application in [4] to [6] of the December Decision.  With respect, KT has not shown how I may have erred in my reasons for the decision.  I am not satisfied that KT has demonstrated an appeal having a reasonable prospect of success against my refusal of the 1^st application.  I am also of the view that there is no other reason in the interests of justice justifying that the appeal should be heard.

6.In my judgment, KT is not entitled to have leave to appeal against my refusal of the 1^st application.

My refusal of the 2^nd application

7.As said in [7] of the December Decision, the 2^nd application is an application made by KT for stay of execution of the costs order awarded to Clarence in the Judgment pending the outcome of CACV 514/2019.  I have refused to grant the stay to KT.

8.With respect, KT’s application for leave to appeal against the refusal is misconceived.  A stay application, after being refused by the court below, may be made to the Court of Appeal.  No leave is required. The application to the Court of Appeal is not an appeal[4].  It is not necessary and incorrect to try to challenge my refusal of the 2^nd application by an appeal.

Other matters

9.In his letter dated 15 January 2021, KT mentioned two matters:

(1)  Clarence is still occupying the Property on an exclusive basis after Madam Wong passed away in December 2020.

(2)  There is an agreement between Clarence’s solicitors and him that Clarence’s costs incurred in HCA 1574/2017 would be charged on the District Court scale.

10.My responses to these matters are as follows:

(1)  At the time of the trial and at the time of the Judgment, Madam Wong was still alive.  As to the impact of the death of Madam Wong on KT’s and Clarence’s respective rights in the Property, that was not explored at the trial, for that was not an issue in the trial.  This is a new issue.  If KT and/or Clarence request for a determination on this issue, they may only do so by commencing another set of legal proceedings.  KT cannot request for a determination on this new issue by the December Summons.  I take this opportunity to remind KT and Clarence that they are brothers, and they should try to resolve the differences between them by constructive discussion and if necessary, by mediation.  Litigation should only be the last resort. They must not forget that litigation is costly, time consuming and full of uncertainties.

(2)  I am aware of the agreement between KT and Clarence concerning costs.  I have ordered that the costs of HCA 1574/2017 be paid by KT on the District Court scale in [67] of the Judgment.  As to the costs order made in [12] of the December Decision, although I have not expressly said that those costs would be assessed on the District Court scale, the costs as per Clarence’s solicitors’ bill dated 8 December 2020 are costs in accordance with the District Court scale.  The summary assessment conducted on 31 December 2020 has also been done on the District Court scale.

Disposition

11.For the reasons above, I dismiss the December Summons. Since Clarence has not provided any written submissions to the court in respect of the December Summons, as to the costs of that summons, I make no order as to costs.

Written submissions by the plaintiff in person