Lucy Michaels v. Centaline Property Agency Ltd and Others

CACV 512 /2018

[2021] HKCA 655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 512 OF 2018

(ON APPEAL FROM HCPI NO 902 OF 2016)

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Before: Hon Kwan VP, Cheung JA and Yuen JA in Court

Dates of Written Submissions: 28 September 2020, 18 and 29 October 2020, 7 and 21 December 2020

Date of Judgment: 7 May 2021

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 27 August 2020, we handed down our judgment (“CA Judgment”) dismissing the plaintiff’s appeal against the order of Deputy High Court Judge Paul Lam, SC made on 12 September 2018. By his order, the judge struck out the plaintiff’s action on the application of the 1^st,2^nd and 3^rd defendants and dismissed her appeal against the decision of Master Leong refusing her application for summary judgment.

2.The plaintiff, the 2^nd and 3^rd defendants have been acting in person throughout.  The 1^st defendant has been represented by Ms Shannon Leung of counsel.

3.On 4 September 2020, the plaintiff filed a notice of motion for leave to appeal against the CA Judgment to the Court of Final Appeal (“the 1^st Notice of Motion”)

4.She filed another notice of motion on 7 September 2020 for leave to appeal against the CA Judgment to the Court of Final Appeal with substantially the same grounds (“the 2^nd Notice of Motion”).

5.Pursuant to Practice Direction 2.1 paragraph 3, the Registrar of Civil Appeals gave directions on 8 September 2020 for the determination of the two notices of motion on paper without an oral hearing and for the lodging of written submissions by all parties.

6.On 9 September 2020, the plaintiff issued a summons for stay of execution of the CA Judgment (“the Summons for Stay”) with a supporting affirmation.

7.On 30 October 2020, she filed a summons seeking to set aside the CA Judgment (“the Setting Aside Summons”) with a supporting affirmation.  Among other things, she complained that no actual hearing took place in the lower court.

8.The Registrar directed on 21 September 2020 and 12 November 2020 respectively that the Summons for Stay and the Setting Aside Summons be dealt with by the Court of Appeal together with the two Notices of Motion.

9.Pursuant to the Registrar’s directions, the plaintiff lodged her submissions on 28 September 2020, the 2^nd and 3^rd defendants lodged theirs on 19 October 2020, the 1^st defendant lodged its counsel’s submissions on 29 October 2020.  The plaintiff served her submissions in reply on 8 December 2020.  On 21 December 2020, she lodged further submissions in reply, together with some documents (without leave of the court), claiming that this was done because she had only received the English translation of the Chinese submissions of the 2^nd and 3^rd defendants on 11 December 2020.

10.As the Registrar had only directed on 25 November 2020 that an English translation of the 2^nd and 3^rd defendants’ submissions be provided to the plaintiff and had further directed on 4 December for time to be extended to 23 December 2020 for the plaintiff to lodge submissions in reply, we will consider the plaintiff’s further submissions in reply.  We decline to consider the additional documents she served with the further submissions as this was done without leave.

The Setting Aside Summons

11.The Setting Aside Summons is plainly misconceived.  The plaintiff has no right and no basis to ask the Court of Appeal to set aside the CA Judgment.  She has already sought leave to appeal against the CA Judgment to the Court of Final Appeal.

12.Furthermore, contrary to her assertion, there was in fact a hearing before the judge on 3 May 2018.  The Court of Appeal dealt with her appeal on paper as all parties have agreed to disposal of the appeal on paper without a hearing.

13.We therefore dismiss the Setting Aside Summons.

The two Notices of Motion

14.The plaintiff stated in her submissions she filed the 2^nd Notice of Motion to replace the 1^st Notice of Motion as the date was wrongly specified in the first and she re-submitted the correct form of the notice of motion to avoid confusion.  She asked the court to consider only the 2^nd Notice of Motion.

15.We therefore dismiss the 1^st Notice of Motion.

16.She stated the following as her grounds of appeal in the 2^nd Notice of Motion:

“injustice done, all documented, CD of hearing will prove each fact, uncontested evidence presented, unfair to the litigant in person”.

17.In support of the 2^nd Notice of Motion, she asserted that the court did not get to see the evidence submitted with her bundle which was replaced by the defendant’s bundle under threat and duress, and this shows “injustice from the court”.

18.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

19.In the CA Judgment at §§48 and 71, we have explained why the court refused to consider the additional documents submitted by the plaintiff and why we consider there was no administrative irregularity and the Registrar did not act improperly in declining to accept the plaintiff’s draft appeal bundle.

20.The plaintiff’s appeal was dismissed because we held that her claims in this action are not viable, that her claim for personal injuries is time barred, and that there is no satisfactory explanation for the delay.  We struck out her purported appeal against the dismissal of her application for summary judgment because she had failed to obtain leave to appeal.

21.There are no valid grounds to contend that the Court of Appeal was wrong in the above rulings.  The plaintiff has not shown any merits in her intended appeal to the Court of Final Appeal.

22.She has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for decision in accordance with section 22(1)(b).  There is also no basis to grant leave to appeal on the ‘or otherwise’ limb.

23.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the 2^nd Notice of Motion.

The Summons for Stay

24.As the 2^nd Notice of Motion is dismissed, it follows that the Summons for Stay of execution of the CA Judgment should also be dismissed.

Costs

25.Costs of the applications and summonses brought by the plaintiff should follow the event.  Having dismissed all the above Notices of Motion and summonses, we order the plaintiff to pay the costs of the 1^st, 2^nd and 3^rd defendants of the above applications and summonses.  We will assess the costs payable to the defendants by summary assessment.

26.We direct the 1^st, 2^nd and 3^rd defendants to lodge their respective statement of costs for summary assessment within 14 days of the handing down of this judgment.  We give leave to the plaintiff to lodge a submission if she wishes to object to any item of costs within 14 days thereafter.  The plaintiff’s submission shall not exceed three pages on A4 paper, printed in font size of not less than 14 and in line spacing of not less than 1.5.  Any non-compliant submission will not be considered by the court.

The Plaintiff (Appellant), acting in person

Ms Shannon Leung, instructed by Cheung & Choy, for the 1^st Defendant (1^st Respondent)

The 2^nd and 3^rd Defendants (2^nd and 3^rd Respondents), acting in person