Ip Cheung Kwok and Another v. Ip Siu Bun and Others

CACV000079D/1988

Headnote

Filing of notice of appeal before judgment or order is perfected - Order 59 rules 4 and 5. Amendement of rule 5 permits notice to be so filed as is now also allowed in England.

BETWEEN

AND BETWEEN

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Coram: Hon. Penlington, J.A. in Chambers.

Date of hearing: 3rd. November, 1988.

Date of delivery of judgment: 3rd November, 1988.

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J U D G M E N T

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1. This is a summons seeking a declaration that a notice of appeal filed before a judgment of the High Court had been seated or otherwise perfected was properly filed; for leave to amend that notice and for matters consequential thereto. I granted the order sought and said that, it being a matter of some importance, I would give reasons later. This I now do.

2. On the 18th May 1988 Godfrey J. delivered a judgment in this action, the hearing of which had commenced on the 14th September 1997. Suffice it to say that it was a complex matter concerning a very valuable property in Queen's Road. Godfrey J. concluded his judgment by saying that the parties would want time to consider the form of the orders to be made and the question of costs. He said "I will adjourn further consideration of these proceedings to a date and time to be fixed." That was done. Further argument was addressed on the 14th September 1988 and final judgment delivered on l7th October. Before that however, on the 23rd June, the 4th defendant ("the appellant") filed a notice of appeal. It is not contended that the appellant was not entitle to appeal against the judgment of the 11th May and the consequential orders of the 17th October but it is a question of whether the notice of appeal is valid or whether the appellant must now seek an order extending time so as to file a fresh notice.

3. The new Order 59 rule 4 (which was in force at the relevant time) provides that a notice of appeal must the served "within the following period (calculated from the date on which the judgment or order of the court below was sealed or otherwise perfected. That is to say -

(a) ..........................

(b) ..........................

(c) in any other case, 6 weeks."

((a) and (b) do not apply here)

4. Order 42 rule 3(1) provides that a judgment or order of the Court takes effect from the day of its date" but it is clear that the judgment of the 18th May was not perfected and no order was made under it. It was so perfected and the relevant orders were made on the 17th October. The question therefore is what is meant by the words "within the following period" in Order 59 rule 3. Does it mean, as contended by Mr. Chang, leading counsel for the appellant, at any time so long as it is before 6 weeks after the judgment is perfected" or does it mean at any time within the period commencing on the date of sealing and ending 6 weeks later."

5. In England Order 59 rule 4(3) has been amended to read that an appeal must be served "not later than 4 weeks after the date on which the judgment or order of the court below was sealed or otherwise perfected" and in the commentary in the Annual Practice the editor says the wording of the amended r4 permits an appellant to serve notice of an appeal before the High Court order has been drawn up and sealed."

6. The Supreme Court Rules in Hong Kong have been also amended but Order 59 rule 4 has remained". However Order 59 rule 5(1), which relates to the setting down of an appeal, was amended. It now reads: "5(1). Within 7 days after the latter of (i) the date on which service of the notice of appeal was effected or (ii) the date on which the judgment or order of the court below was sealed or otherwise perfected, the appellant must lodge with the Registrar ........".

7. Mr. Chang argues that if a notice of appeal cannot be filed before the judgment is perfected 5(i) is redundant because 5(ii) would always be the later date. The commentary in the Annual Practice states that period (i) applies when the notice of appeal has been field before the judgment or order has been sealed and again it is argued that the amendment does not make sense if that cannot be done in Hong Kong.

8. The commentary goes on to say, as regards the new Order 59 rule 4 that, as amended, while it now permits the filing of a notice of appeal before the judgment or order has been drawn up and sealed, "on a strict reading of the old rule 4 it was probably not permissible to serve notice of appeal prior to the date on which the judgment or order of the court below was signed, entered or otherwise perfected. The old rule 4 is still unamended in Hong Kong but it is contended here that firstly the commentary is only that and is not binding; it does say "on a strict reading" and in any event must now be looked at in the light of the amended rule 5.

9. Reliance was also placed on the decision in I.R.C. v. King 1973 3 A.E.R. 721, and on Manorlike Ltd. v. Le Vitas Travel Agency Ltd. 1986 1 A.E.R. 574. In the former case it was held that the words "within 3 years" in Section 103(2) of the Taxes Management Act 1970 meant "not later than 3 years". In Manorlike Ltd. "within" was said to be capable of meaning "during" or "before" or "at the expiry of" the period.

10. Mr. Van Buuren, who appeared for the 1st respondent (the plaintiff), said his client was content to abide the Court's decision in the matter but asked for his costs and the 1st and 2nd defendants, who were in person, took the same attitude.

11. I am satisfied that it is desirable, particularly in cases of this nature, that notices of appeal be filed as soon as possible and that the practice of allowing that to be done before the order below is sealed, as now followed in the U.K. (and I may say in New Zealand and Australia) should also apply in Hong Kong unless clearly contrary to the Rules.

12. The amendment of Order 59 rule 5 in my view shows a clear intention that rule 4 should not now be given the strict interpretation referred to in the commentary in the Annual Practice. This does find support in I.R.C. v. King although the facts there were very different. I also agree that if there was a contrary intention Order 59 rule 5(1) as amended would be meaningless and that cannot he the case. I am therefore satisfied that a notice of appeal can he filed before the judgment of orders made below are sealed or otherwise perfected.

The costs of this summons will be costs in the appeal.

Representation:

Denis Chang, Q.C. & K.B. Ng (Woo & Woo) for 4th Defendant/Appellant

Brian Van Buuren (king & Co.) for 1st Respondent/Plaintiff

D1, D2 in person (original action)

5th Respondent (2nd Defendant by Counterclaim) not appearing