Yinggao Resources Ltd and Others v. The Hongkong and Shanghai Banking Corporation Ltd

HCA 128/2022

[2022] HKCFI 2335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 128 OF 2022

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BETWEEN

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Before: Hon Au-Yeung J in Chambers

Closing Date for Written Submission: 21 July 2022

Date of Decision: 28 July 2022

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D E C I S I O N

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Introduction

1.On 6 June 2022, this Court upheld the Master’s decision granting extension of time for the Defendant to file its defence after determination of the appeal in HCA 329/2015 (“Decision”). This is the Plaintiffs’ application for leave to appeal to the Court of Appeal against the Decision.

Legal principles for leave to appeal

2.The court must be satisfied that 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 before granting leave. Reasonable prospect of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’: SMSE v KL [2009] 4 HKLRD 125 at §17.

3.An appeal against the case management decision of the court below is a type of an appeal against exercise of discretion: Hong Kong Civil Procedure 2022, §59/0/55. The appellant faces a very high hurdle and has to show that the judge had gone clearly wrong and made orders which clearly involved an injustice to an inability for the trial court to carry out its task or had erred in principle or that his/her order was irrational: Hong Kong Civil Procedure 2022, at §59/0/55.

Analyses of the 4 intended grounds of appeal

4.It has to be borne in mind that the Plaintiffs have not made any submission at the hearing on 6 June 2022 (“Hearing”) except to apply for an adjournment. The Hearing concerned extension of time for filing a defence, which was a fresh exercise of discretion by the judge on appeal. The Plaintiffs have not shown how this Court has clearly gone wrong. The application for leave to appeal is thus totally unjustified. In any case, the Grounds of Appeal do not bear scrutiny.

Ground 1

5.The Plaintiffs seek to appeal against this Court’s refusal to grant them an adjournment of the Hearing. The Decision has taken into account the Plaintiffs’ prior application for adjournment by letter which was rejected and the lack of complication in the matter (Decision, §5).

6.In the submission in reply, the Plaintiffs assert that this Court had held a double standard in giving a chance for the Defendant to object to the Plaintiffs’ application by letter but failed to provide a chance for the Plaintiffs to reply to it. That assertion was never raised at the Hearing.

7.Refusal to adjourn was effectively a case management decision. The Plaintiffs have not shown how this Court fell within the principle in paragraph 3 above. Ground 1 is not arguable.

Grounds 2-4

8.These grounds effectively re-run the views of the Plaintiffs’ solicitors that the reference notes in Form 14 amounted to an unless order, which the Defendant had failed to comply with and failed to apply for relief from sanctions.

9.Not only had the Decision held those views to be erroneous, but 2 other Courts have come to the same holding: Young Crystal Limited & Ors v Hang Seng Bank Limited [2022] HKCFI 1589 at §§17 to 20, Cheng J; Guangdong Yinggao Shipping Limited v Secretary for Justice [2022] HKCFI 305, DHCJ Le Pichon, §§12 to 17.

10.Further, Ground 4 refers to Order 42, rule 4(1) and (2) which were irrelevant and not advanced at the Hearing.

11.Grounds 2-4 do not disclose arguable grounds of law.

Conclusion and costs

12.As none of the Grounds have any reasonable prospect of success, I dismiss the application for leave to appeal.

13.The Plaintiffs’ arguments have been considered in the cases of Young Crystal and Guangdong Yinggao Shipping. The Plaintiffs have been made aware of the latter at the hearing before the Master whose decision was appealed against at the Hearing. The Plaintiffs’ solicitors were solicitors acting for the Plaintiff in Young Crystal and the Plaintiffs’ solicitors should have been aware of their erroneous views of the law.

14.As the present application is wholly unmeritorious, I make an order nisi for the Plaintiffs to bear costs on indemnity basis, summarily assessed at $47,201.80.

Written Submission by KH Mak & Co, for the 1^st to 3^rd Plaintiffs

Written Submission by Messrs Mayer Brown, for the Defendant