Wise S. R. L. v. Apennine Holdings Ltd

HCA 1872/2019

[2021] HKCFI 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1872 OF 2019

________________________

BETWEEN

________________________

HCA 1945/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1945 OF 2019

________________________

BETWEEN

________________________

(Heard together)

Before:  Mr Recorder Houghton SC in Chambers

Date of written submissions by plaintiff:  12 March 2021

Date of written submissions by defendant:  8 & 19 March 2021

Date of Decision:  29 March 2021

________________________

D E C I S I O N

________________________

1.The defendant applies by way of written submissions dated 8 March 2021 for leave to appeal against the decision made by this court on 25 January 2021 dismissing the appeal by the defendant against the judgement entered by Master Phoebe Man on 20 October 2020.  The Master had entered judgement against the defendant pursuant to a summary judgement application made by the plaintiff.

2.The appeal of the defendant was made pursuant to Order 58 of the Rules of the High Court, and, as such, the appeal was formally a rehearing of the plaintiff's application: See Hong Kong Civil Procedure; 58/1/2:

“An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right as well as the obligation to open the appeal..."

3.The basis for the application for leave to appeal by the defendant appears, from its reply submission, to be that, what is described as an "order 58 decision", is different in nature to a summary judgement determination, and therefore "might have to go through more hurdles than an application to appeal an Order 14 decision of the Master".

4.This, appears to misunderstand the nature of the appeal from the decision of the Master.  It appears to me to be clear that there is an exception to the requirement for leave to appeal to the Court of Appeal per (O.59, r.21 (1)) in the case of:

“(a)  a judgment or order determining in a summary way the substantive rights of a party to an action.”

Further, the Rule clarifies per (O.59, r.21 (2)) that:

“(2)  Without affecting the generality of paragraph (1)(a), the following are judgments and orders determining in a summary way the substantive rights of a party -

1.  a summary judgment under Order 14...”

5.In those circumstances I find myself in agreement with the submissions of the plaintiff, that not only is leave not required from this court, but this court has no jurisdiction in respect of such an application.

6.As regards costs, the plaintiff seeks an order to be made in its favour on an indemnity basis, with such costs to be assessed summarily. For my own part, I am not inclined to make an order for costs on an indemnity basis, there being no such established practice of which I am aware in circumstances in which no specific "misconduct" on the part of the applicant for leave to appeal has been identified. The order I make, on an order nisi basis, is simply that the costs be to the plaintiff, to be summarily assessed.

Written submissions by Mr Vincent Chiu, instructed by Fairbairn Catley Low & Kong, for the plaintiff of both cases

Written submissions by Mr Lee Tin-ho, instructed by Chiu, Szeto & Cheng, for the defendant of both cases