Chiu Butt-york v. Chiu Kwok-lim and Others

CACV000097/1979

-----------------

Coram: Li, J.A., O'Connor and Power, JJ.

Date of Judgment: 6 June 1980

-----------------

JUDGMENT

-----------------

Li, J.A.:

1. The proceedings before us is a consolidated hearing of a Notice of Motion to discharge an appeal and a Summons for extension of time for lodging documents in relation to the same appeal. The subject matter are so inter-related that learned counsel for both parties agreed that they should be heard together.

2. The appellant and the respondents were involved in a land dispute in the New Territories in High Court Action No. 810 of 1979 in which the respondents were the plaintiffs and the appellant the 1st defendant. The action was heard before Mr. Commissioner Penlington (as he then was) from the 4th October to 26th October, 1979. On the 31st October oral judgment was given in favour of the respondent. On the 22nd November, 1979 reasons for the judgment were given. Solicitor for the appellant then lodged notice of appeal on the 10th December 1979. The judgment and order was perfected, filed by the respondents' solicitor on the 16th January, 1980 and served on the appellant on the 17th January, 1980. No further step was taken by either party. On the 17th March, 1980 the respondents' solicitor wrote to the appellant's solicitor giving seven days for the appellant's solicitor to lodge the necessary papers with a view to having the appeal set down for hearing failing which the respondents' solicitor intimated that the respondents would apply to this court to discharge the appeal. On the 18th March the appellant's solicitor applied for a list of the exhibits in the court below. On the 21st March the appellant's solicitor wrote to the Registrar enclosing all the necessary documents with a view to having the appeal set down for hearing. On the 24th March the Registrar wrote to the appellant's solicitor returning all the documents refusing to set the appeal down for hearing on the ground that the documents were lodged out of time. On the 11th April the appellant's solicitor prepared a draft summons to apply for an extension of time to lodge the necessary documents pursuant to Order 59 rule 5 of the Supreme Court Rules together with his affidavit in support which gave no reason for the delay at all. The appellant's solicitor also wrote to the respondents' solicitor requesting their consent to the application. On the same day the respondents' solicitor replied to the effect that he would take instructions from his clients. On the 17th April the respondents' solicitor wrote to the solicitor for the appellant intimating that their clients refused consent to the application for an extension of time and had issued and served a Notice of Motion applying to this court to discharge the appeal. On the 18th April the appellant's solicitor issued a summons for an extension of time. This summons went before the Registrar on the 30th April. With the consent of the parties the Registrar adjourned the summons to this court to be heard together with the Notice of Motion to discharge the appeal. On the 4th May the transcript of proceedings in the court below was received by the appellant's solicitor.

3. Some irregularities are found in the appellant's summons dated the 18th April. Order 3 rule 5 is put down by the margin indicating that the summons is taken out pursuant to that Order. However, in the body of the summons Order 59 rule 5 is referred. If the application were made pursuant to Order 3 rule 5 it should take the form by Notice of Motion. However, as the parties before the Registrar consented to the summons to be heard by this court we are prepared to treat the summons as if it had been put properly before this court.

Reason for Delay

4. In order to explain the reasons for the delay solicitor for the appellant filed no less than three affidavits in support. The first is dated the 17th April, 1980. The solicitor said in para. 3 that he was unable to comply with Order 59 of the Rules of the Supreme Court for reasons beyond his control because (to use his own words):-

5. The second was filed on the 26th April, 1980. Having referred to the facts as set out aforesaid he said in paras. 9 and 10 thereof as follows:-

6. The third was sworn on the 23rd day of May in which the solicitor said:-

"The transcript of proceedings in High Court Action No. 810 of 1979 was made available to my firm only on 4th May 1980. As the Appellant's Summons to extend the time for him to lodge the papers was filed on 18th April 1980, little delay would have been caused but for the Respondents' Notice of Motion to discharge the Appeal herein which consequently resulted in a delay of the hearing of the Appellant's application. It is because of the matters that will be before the Court of Appeal on the 26th May 1980 that there is any real delay in having the Appeal itself set down."

7. I need only refer to one affidavit filed by the solicitor for the respondents dated the 26th April this year. In para. 2 he said:-

"As to paragraph 3(ii) of Arthur Au's Affidavit filed on 18th April, 1980, the formal Judgment and Order were filed on the 16th day of January 1980. A copy of the lengthy Judgment of Mr. Commissioner Penlington (as he then was) was supplied to my firm by cover of a letter dated 22nd November 1979 from the Supreme Court. After this was received, I proceeded to draw up the formal Judgment and Order, and drafts of the same were submitted by my firm at or about the end of November 1979 for the approval of the clerk to Mr. Commissioner Penlington. These were approved on 9th January, 1980. These are now produced and shown to me marked 'GT-6' and 'GT-7' respectively a copy of the draft Judgment and a copy of the draft Order with the endorsement 'approved' and the signature of the clerk to Mr. Commissioner Penlington and the date 9th January, 1980. The drafts were then collected by a clerk of my firm within 2 or 3 days thereafter and I caused the formal Judgment and Order to be filed on 16th January, 1980 which was then served on Messrs. Arthur Au & Co."

The Facts

8. Having considered the aforesaid facts we come to the conclusion that the delay up to the 17th January, 1980 was through no fault of either the appellant or the respondent. It is also clear that right at the outset the appellant had intended to pursue the appeal and instructed his solicitor to take steps in doing so. The Notice of Appeal was served on the 10th December, 1979 and within time. The delay up to the 17th January, 1980 in leaving the papers relating to the appeal and to have it set down is due to no fault of either party. When the respondents' solicitor wrote to the appellant's solicitor on the 17th March this year raising the matter the latter responded promptly by indicating that their appeal would be pursued and that necessary steps would be taken for setting down the above appeal. These facts were known to the respondents and their solicitor. There is no question of the respondents or their solicitor not knowing that the appeal would be set down for hearing. The sole reason for the delay was due to an oversight on the part of the appellant's solicitor who said he "overlooked" the matter. This default learned counsel for the appellant categorised as negligence. His first mistake was his inertia between the 17th January, 1980 and 17th March, 1980. His second mistake was, having obtained the list of exhibits on the 21st March, 1980 he did not apply for an extension of time straight away. Instead, he took it for granted that by sending the documents to the Registrar the appeal would be set down for hearing. Between the 24th March and the 11th April he did nothing to remedy such a mistake. We have no doubt that the whole delay was due to the negligence of the appellant's solicitor.

The Law

9. Learned counsel for the respondents referred us to a number of authorities in support of the proposition that to justify an extension of time there must be adequate material to enable the court to exercise its jurisdiction. In the case of Ratnam v. Cumarasamy [1965] 1 W.L.R. 8 the Court of Appeal in the Federation of Malaya refused an extension of time even though the delay was a matter of four days. On appeal, the Privy Council refused to interfere with the decision of the Court of Appeal in Malaya. In his judgment Lord Guest said at p.12:

"The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged and that his reason for this delay was that he hoped for a compromise. Their Lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material upon which they could exercise their discretion in favour of the appellant. In these circumstances their Lordships find it impossible to say that the discretion of the Court of Appeal was exercised upon any wrong principle."

10. In that case the cause of delay was entirely the mistake of the appellant himself. The appellant in that case said that he expected a compromise until the very late stage. On the other hand there was an affidavit from the respondent to the effect that the respondent had never been approached for a compromise. There was no question of any mistake made by the solicitors of the appellant in that case. It appears that it was on this ground that the Privy Council refused to interfere with the decision of the Court of Appeal to exercise their discretion.

11. In the case of Revici v. Prentice Hall Inc. & Others [1969] 1 W.L.R. 157 the appellant was given a total of eleven weeks for him to consider appealing to the Court of Appeal on a judge's decision refusing leave to serve the writ out of jurisdiction. Notice of appeal was not served within the eleven weeks. The respondent's solicitor then proceeded to draw up the bill of cost. The respondent was never informed that the appellant intended to appeal save that the appellant would consider appealing. The plaintiff proffered no explanation whatsoever. Instead, the plaintiff sought to rely on

"the established principle of the court whereby, in the absence of excessive delay, an extension of time would be granted unless an irreparable mischief would be done; and that the judge's order would result in grave injustice to the plaintiff, in that it would deprive him of all remedy for the wrong upon which the claim was founded."

Lord Denning, M.R., said in his judgment at p.159 as follows:-

"...... There was ample time for considering whether there should be an appeal or not. (I should imagine it was considered). Moreover (and this is important), not a single ground or excuse is put forward to explain the delay and why he did not appeal. The plaintiff had three and a half months in which to lodge his notice of appeal to the judge and he did not do so. I am quite content with the way in which the judge has exercised his discretion. I would dismiss the appeal and refuse to extend the time any more."

12. In another judgment in the same case Edmund Davies, L.J. at p.160 said as follows:-

"...... On the contrary, the Rules of the Supreme Court are there to be observed; and if there is non-compliance (other than of a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted."

13. In that case the Court of Appeal refused to exercise its discretion because there was absolutely no explanation offered.

14. We are satisfied that it is important to bear in mind, when determining the weight to be given to the judgments delivered in the above two cases, that in neither was the appellate court dealing with an original exercise of its own discretion. The decisions were delivered in the context of an application in which the appellate court was being asked whether it was prepared to hold that there had been a wrong exercise of discretion by the lower court.

15. We now turn to the consideration of three cases where a Court of Appeal was asked to exercise its own discretion. In the case of Gail Stevenson and another v. The Chartered Bank [1977] H.K.L.R. 165 the explanation given in support of an application for extension of time was the mistake and misunderstanding of the appellants' solicitor. At p. 168 Huggins, J.A. said as follows:-

"...... I do not think the Appellants should be penalized for his failure to comply with the terms of the rule. We are told that the registrar thought the facts of this case were akin to those in Ratnam v. Cumarasamy (1965) 1 W.L.R. 8, because the failure to comply with the rule was 'deliberate' on the part of the Appellants. While there is a superficial similarity, I think there are distinctions in that in Ratnam's Case the reason for the delay was unconnected with the subject matter of the action and there was no suggestion of any misunderstanding: the appellant was simply hoping for a compromise without having even approached the respondents with a view to one. In the present case the first Appellant acted wiyh reasonable promptitude as soon as it became clear that the bank was not agreeing to an extension of time and in my judgment she has shown sufficient cause why an indulgence should be granted under o. 3 r. 5."

In the same case at p. 170 Pickering, J.A. said as follows:-

"There is the additional consideration that the mistake as to that if there was a mistake, was that of the first Appellant's solicitor and was no fault of hers whilst the consequence of her being unable to pursue her Appeal as a result of a technicality, would be of the gravest."

In such circumstances the Court of Appeal exercised its discretion and granted an extension of time. Thus a mistake or a misunderstanding on the part of the appellant's solicitor may be an explanation worthy of consideration by the court requested to exercise its discretion in favour of the appellant.

16. There is the case of Wong Shu-tao v. Madam Choi Shuen-lan Civil Appeal 1979 No. 71. In that case the explanation given for the delay was that the appellant's solicitor confused the provisions of Order 59 rule 5 with those in Order 59 rule 9 resulting to a delay of over two months. Huggins, J.A. delivering the judgment of the Court of Appeal on an application under Order 3 rule 5, said as follows:

17. Finally there is the case of Gatti v. Shoosmith [1939] 3 All E.R. 916. This case is not cited before us but it was cited in the case of Gail Stevenson v. The Chartered Bank before the Court of Appeal. In that case the mistake in construing Order 58 rule 15 of the Rules of the Supreme Court in England was accepted by the Court of Appeal as a valid explanation for the delay in entering an appeal. At p.919 Sir Wilfrid Greene, M.R. (as he then was) said:-

Conclusion

18. Applying the principles of the authorities cited and to the facts of the present case we are of the opinion that the mistake and misunderstanding of the legal adviser for the appellant may be taken into consideration as some form of explanation in the exercise of our discretion. Through no fault of either party the appellant would have had, in any way, to apply for an extension of time by the 17th January, 1980. The inertia between the 17th January and the 17th March, 1980 on the part of the appellant's solicitor was induced by his own mistake in thinking the record of proceedings in the court below would not be ready for at least a few more months. His further complacency between the 24th March to the 11th April was prompted by the same mistake and the mistaken expectation that the respondents would consent to such an extension of time not knowing that the matter of an extension of time was entirely in the discretion of the Registrar. Such conduct may be taken into consideration. Whether it is a sufficient explanation is another matter. If we grant the Notice of Motion to discharge the appeal and refuse the extension of time his lay client, the appellant, would have no remedy other than taking action against the solicitor himself for damages for negligence. The appeal relates to over 1,000 acres of land and the issue involved is over $80,000,000. The stake in issue would invariably be a relevant factor. We feel that it might be one of the many factors taken into consideration. Here the appellant made clear his intention of appeal from the outset. The respondents had not been misled or deceived into the belief that there was any abandonment of the appeal. The appellant's solicitor took prompt steps, albeit wrong steps, to pursue the matter. We see no injustice if the appellant is not penalized for the mistake of his solicitor subject to the question of costs. For these reasons the Notice of Motion to discharge is refused and an extension of time is granted to the appellant. Time is, therefore, extended to on or before 12th June, 1980.

Representation:

B. Bernacchi, Q.C. and P. Fung (Arthur Au & Co.) for the appellant.

R. Neville Thomas, Q.C. and A.H. Sakhrani (T.S. Tong & Co.) for the respondents.