Read the full judgment text of CACV 000097/1979 on BabelCite. This Court of Appeal judgment was delivered on 6 June 1980 before Li, J.A., O'Connor and Power, JJ..
Civil procedure – Court of Appeal – extension of time – setting down appeal – Order 59 rule 5 of the Rules of the Supreme Court – solicitor's mistake or negligence as ground for extension – whether mistake of legal adviser can be sufficient cause – over 1,000 acres of land dispute in the New Territories – High Court Action No. 810 of 1979 – oral judgment for respondents on 31 October 1979, reasons given 22 November 1979 – notice of appeal lodged within time on 10 December 1979 – formal judgment and order filed 16 January 1980 and served 17 January 1980 – delay in lodging documents to set down appeal – registrar refused to set down on ground documents lodged out of time – respondents' Notice of Motion to discharge appeal and appellant's Summons for extension of time heard together – whether solicitor's mistake and misunderstanding may be taken into consideration as explanation for delay – principle that rules of court must prima facie be obeyed and adequate material needed to exercise discretion – Ratnam v. Cumarasamy applied where delay unexplained – Revici v. Prentice Hall Inc. applied where no explanation offered – Gail Stevenson v. The Chartered Bank and Gatti v. Shoosmith applied where solicitor's mistake accepted as valid explanation – Wong Shu-tao v. Madam Choi Shuen-lan applied where appellant very lax and no merits – court's discretion is free one depending on facts of each case – appellant's solicitor filed three affidavits explaining delay due to his own oversight in believing transcript would not be ready for months and inertia in not applying for extension of time promptly – delay up to 17 January 1980 through no fault of either party – subsequent delay entirely due to solicitor's negligence – appellant made clear intention to appeal from outset – respondents not misled or deceived into belief of abandonment – appeal involved substantial value of over $80,000,000 – appellant would have no remedy other than action against solicitor for negligence if appeal discharged – injustice to penalize appellant for solicitor's mistake subject to costs – Notice of Motion to discharge refused – extension of time granted to on or before 12 June 1980 – subject to question of costs.
Legal issues: Whether solicitor's mistake or negligence is a sufficient explanation for delay in setting down an appeal · Whether the Notice of Motion to discharge the appeal should be granted · Whether an extension of time to lodge appeal documents should be granted
Outcome: Respondents' Notice of Motion to discharge the appeal refused; appellant's Summons for an extension of time granted, with time extended to lodge documents on or before 12 June 1980, subject to the question of costs