Aluhouse Co Ltd v. Success Lane Development Ltd

DCCJ 3937/2020

[2022] HKDC 17

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3937 OF 2020

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BETWEEN

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DECISION

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1.On 23 September 2021, I dismissed D’s appeal against a decision made by Master Jocelyn Leung on 15 June 2021. On 27 September 2021, I handed down reasons for dismissing the appeal (“the Reasons”)[1]. D intends to take the matter to the Court of Appeal, and seeks leave to appeal by a summons dated 6 October 2021 (“the summons”). This decision should be read together with the Reasons. For ease of reference, the abbreviations used in the Reasons are adopted herein.

2.I have directed that the summons be determined on paper without an oral hearing. The parties have lodged written submissions pursuant to those directions. All the written submissions have been duly considered by me.

3.Subsequent to my decision made on 23 September 2021, on 28 September 2021, the Registrar made an order to consolidate DCCJ 3937/2020 and DCCJ 4051/2020, and gave directions concerning, inter alia, the pleadings in the consolidated action. For avoidance of doubt, the summons would be determined by reference to the pleadings before the court in DCCJ 3937/2020 at the hearing on 23 September 2021.

THE PRINCIPLES

4.The principles concerning leave to appeal are well known. Leave to appeal from this court to the Court of Appeal can only be granted if the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard^[2]. Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable^[3].

5.In respect of admission of new evidence in an appeal, the Ladd and Marshall^[4] conditions apply^[5]. Further evidence is admissible on an appeal only where such evidence:-

(1) could not have been obtained at the trial or at the hearing with reasonable diligence;

(2) would or might, if believed, have a very important effect on the mind of the court; and

(3) is of a sort which inherently is not improbable.

NO NEW EVIDENCE

6.D is trying to introduce new evidence in the appeal. D has filed the affirmation of Madam Yung Mei Chun (“Madam Yung”) dated 6 October 2021 (“the affirmation”) in support of the summons. Exhibit 1 to the affirmation is a list of projects obtained from P’s official website (“the list of projects”). The list of projects is not evidence in the hearing before the Master nor evidence before me in the hearing on 23 September 2021. That list cannot be evidence in the intended appeal to the Court of Appeal for the following reasons:-

(1) There has not been any explanation as to why the list of projects could not be obtained by D with reasonable diligence prior to the hearing before the Master.

(2) Further, it cannot be said that the list of projects would have a material impact on the outcome of the appeal. There is no evidence showing that any project mentioned in the said list was contracted by P during the term of the Consultancy Agreement.

7.In my view, D is not entitled to introduce the said new evidence in the intended appeal.

GROUNDS OF THE INTENDED APPEAL

8.The affirmation and D’s written submissions are prolix. It is not easy to distil the proper grounds of appeal from those documents. What D should do is to set out the concise grounds which are reasonably arguable in a draft notice of appeal. However, this has not been done by D. What D has done is contrary to the guidance repeatedly emphasized by the Court of Appeal. As said by Lam VP in Gotland Enterprises Limited v Kwok Chi Yau^[6]:-

“70. A notice of appeal should only set out grounds which in counsel’s view are reasonably arguable. The practice of lodging an appeal with ill-considered and unsatisfactory grounds of appeal, particularly those that provide no more than a lengthy critique of the judgment rather identify a justifiable basis for the Court of Appeal interfering in the decision of the judge below, is not acceptable. In future, the court will exercise tighter case management of the appeal process and the Registrar may bring such illegitimate notices of appeal to the attention of a judge for striking out consideration. In modern litigation ethos, appeals brought without proper grounds are regarded as abuse of process.”

See also Lam VP’s dictum in Yap Sui Kong v Yip Fong Tim^[7].

9.I am grateful to the summary prepared by Mr Alexsander Wong for P[8], in which Mr Wong has fairly summarized the grounds of appeal which can be seen from the papers filed by D. Those grounds are as follows:-

(1) this court erred in partially and selectively discussed the circumstances in the pleadings in respect of the dispute over the effective termination date;

(2) this court erred in holding that D’s pleaded case is limited to projects contracted during the term of the Consultancy Agreement, and this court ought to hold that D’s pleaded case covers projects contracted after the termination of the Consultancy Agreement;

(3) this court erred in concluding that there is no sufficient evidence showing that apart from the 5 pleaded projects, P has contracted any other project during the Consultancy Period;

(4) this court erred in concluding that the disclosure ordered for item 4 should be limited to the 5 named projects in the pleadings;

(5) this court erred in refusing Item 5;

(6) this court erred in finding that Item 6 is irrelevant to D’s entitlement for commission under the Consultancy Agreement;

(7) D’s grounds for seeking discovery of Items 7 and 23 are the same as those under Items 4 and 5, and this court erred in not allowing discovery of these items;

(8) this court erred in handling the irregularity in relation to the obtaining of the Amended Order by P;

(9) this court erred in finding that the hearing before me is not an appropriate occasion to deal with D’s complaint of the format of the Management Accounts disclosed by P pursuant to the Master’s order; and

(10) this court erred in awarding costs, including giving a certificate for counsel, to P.

NO REASONABLE PROSPECT OF SUCCESS

10.In my view, none of the grounds put forward by D is reasonably arguable.

Ground 1

11.In [11(2)] of the Reasons, I have summarized the parties’ respective pleaded cases concerning the effective termination date of the Consultancy Agreement. It cannot be said that I have erred in any aspect in this summary. Further, the disclosure order made by the Master is made on the assumption that the effective termination date as suggested by D (i.e. 12 July 2020) is correct. That is why documents relating to Penny’s Bay Phase 2 (contracted between 15 June 2020 and 12 July 2020) have been ordered to be disclosed.

12.I do not see in what way this ground may assist D in the intended appeal. There is no merit in Ground 1.

Ground 2

13.In [14] of the Reasons, I said:-

“14. P pleaded that D is only entitled to commissions based on projects “contracted during the terms of the Consultancy Agreement” (“the Consultancy Period”). This is not disputed by D.”

14.D now says that it is D’s pleaded case that D should also be entitled to commissions from post-termination projects. With respect, this is not the case.

(1) At [22] of the statement of claim, P has pleaded that D is only entitled to commissions based on projects “contracted during the terms of the Consultancy Agreement”, in line with Appendix A of the Consultancy Agreement.

(2) At [33] of the defence, D is referring to its entitlement of projects contracted during the term of the Consultancy Agreement. Nowhere in the pleadings did D advance a case that it is also entitled to post-termination project’s commissions.

15.Ground 2 is plainly wrong.

Ground 3

16.As to why I said that there is no sufficient evidence showing that P had contracted the Other Projects during the Consultancy Period, I have set out my analysis in [25(2)] of the Reasons. I am not persuaded that I have erred in that analysis. Ground 3 is not reasonably arguable.

Ground 4

17.The only submission put forward by D under this ground is that the “proviso” in the pleadings that “Exact number of projects and contract sums to be verified/discovered from P”[9] is sufficient for the court to order disclosure of the documents relating to some other projects. As submitted by Mr Wong, in the absence of evidence showing the existence of the Other Projects and that P is in possession of the documents relating to the Other Projects, both the Existence and Possession Requirements are not satisfied. In accordance with the established principles, disclosure should not be ordered in these circumstances. Furthermore, the pleading of the “proviso” is no substitute for particularizing the claim. Disclosure cannot be ordered on the basis of a wholly-unparticularized claim.

Ground 5

18.My reasons for refusing Item 5 have been set out in [25] and [26] of the Reasons. I am not persuaded that I have erred in any aspect in the analysis. Ground 5 is not reasonably arguable.

Ground 6

19.D’s pleaded case is that commissions are based upon the contract sums. I have explained why I refused Items 6 in [28] to [30] of the Reasons. I do not think that D has put forward any argument which shows that I may have erred in my analysis. There is no merit in Ground 6.

Ground 7

20.The reasons for refusing Items 7 and 23 are the same as those for refusing Items 4 and 5. For the reasons set out in the above, Ground 7 is also not reasonably arguable.

Ground 8

21.My comments on the Amended Order as set out in [4] to [6] of the Reasons are irrelevant for the purpose of assessing the merits of D’s intended appeal. Simply, Ground 8 cannot be a ground in support of D’s intended appeal.

Ground 9

22.Similarly, my comments on the format of management accounts disclosed by P as set out in [7] of the Reasons are irrelevant for the purpose of assessing the merits of D’s intended appeal. Ground 9 cannot be a ground of appeal at all.

Ground 10

23.The Court of Appeal will not interfere with the exercise of a judge’s discretion in the award of costs unless it was shown that he failed to exercise the discretion, or exercised it upon a false principle, or did not exercise it judicially or the exercise of discretion was demonstrably flawed.[10]

24.The general rule is that costs should follow the event. Having dismissed D’s appeal against the Master’s order, following the general rule, D should pay costs of the appeal to P. Although I have not required Mr Wong to elaborate his submissions orally in the hearing of the appeal on 23 September 2021, that does not mean engagement of counsel is not necessary or not appropriate. In fact, before the hearing of the appeal, counsel has prepared detailed written submissions, and by which counsel has provided me very helpful assistance. With all these in mind, I made the costs order as set out in [34] of the Reasons.

25.There is no merit in Ground 10.

No other reason

26.For the sake of completeness, I have also considered whether there is any other reason why the appeal should be heard in the interests of justice. In my view, there is no such reason.

Disposition

27.I dismiss the summons. Costs of the summons should follow the event and be to P, with a certificate for counsel. Those costs are summarily assessed at HK$35,000 and payable forthwith.

28.Lastly, it remains for me to thank counsel for the helpful assistance rendered to the court.

Mr Alexander Wong, instructed by Chong & Partners LLP, for the plaintiff

The defendant acting in person