Read the full judgment text of CAMP 62/2022 on BabelCite. This Court of Appeal judgment was delivered on 8 December 2022 before 區慶祥, 林雲浩.
Civil procedure – appeal – extension of time for filing notice of appeal – O.59 r.4(1)(c) and r.15 RHC – application for leave to adduce new evidence – Ladd v Marshall test – application for stay of execution – Star Play test – two brothers dispute beneficial ownership of Tuen Mun flat – plaintiff's case based on alleged oral agreement among three brothers to pool handbag business funds to purchase a property for each – defendant's case that property was purchased in plaintiff's name due to defendant's inability to obtain mortgage, with defendant paying all expenses – trial court accepted defendant's evidence and found plaintiff not a credible witness – judgment delivered 23 December 2021 – plaintiff failed to file notice of appeal within 28-day deadline but filed extension application on last day – first ground: whether trial judge showed apparent bias by assisting self-represented defendant in cross-examination – Deacons v White & Case test – court follows Yelsen Finance – held no real possibility of bias as judge only clarified and restructured questions – second ground: alleged negligence of original lawyers in not introducing documents and not objecting to judicial questioning – solicitors enjoy wide discretion under Progetto Jewellery – remedy for negligence is claim against lawyer, not retrial, per Cheung Yiu Wing – third ground: trial judge erred in allowing re-calling of plaintiff for further cross-examination after defendant's hospitalisation – appellate court only interferes with discretion if principle error, per 譚及黃 and 梁志文 – no basis shown – fourth ground: trial judge's factual findings were plainly wrong on eight matters (rates, management fees, cheque stubs, mortgage guarantee, deposit slips, early redemption, trust arrangement, employee records, defendant's credibility) – Ting Kwok Keung v Tam Dick Yuen / 劉仲基 v 劉妙婷 plainly wrong test – plaintiff failed to show any finding was plainly wrong – new evidence fails Ladd v Marshall as plaintiff always had documents and offered no explanation beyond alleged solicitor oversight – extension of time refused as no reasonable prospects of success – stay of execution refused as no reasonable prospects and no additional reasons shown – no costs order made.
Legal issues: Whether new evidence should be admitted on appeal under Ladd v Marshall · Whether the proposed ground of appeal regarding alleged judicial bias has reasonable prospects of success · Whether the proposed ground of appeal regarding alleged negligence of original lawyers has reasonable prospects of success · Whether the proposed ground of appeal regarding the trial judge allowing re-cross-examination has reasonable prospects of success · Whether the proposed ground of appeal regarding the trial judge's factual findings has reasonable prospects of success · Whether time should be extended for filing the notice of appeal · Whether execution of the judgment should be stayed pending appeal
Outcome: All three applications by the plaintiff (extension of time to file notice of appeal, stay of execution, and new evidence) are refused, and the three summonses filed on 18 February, 13 April and 28 April 2022 are dismissed.
Cited by 15 cases · Cites 12 cases