Hill Concept Ltd v. Yuen Tin Yun
Read the full judgment text of DCCJ 4215/2023 on BabelCite. This District Court judgment was delivered on 9 August 2024.
1. On 26 March 2024, I dismissed the Defendant’s appeal against:
Cited by 2 cases · Cites 8 cases
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DCCJ 4215/2023 [2024] HKDC 1282 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4215 OF 2023 ------------------------------ BETWEEN
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------------------------- DECISION ------------------------- INTRODUCTION 1.On 26 March 2024, I dismissed the Defendant’s appeal against:
2.As explained in my Reasons for Decision dated 2 April 2024 ([2024] HKDC 499[3]), I am of the view that:-
3.By the summons dated 12 April 2024, the Defendant seeks leave to appeal against my order/decision dated 26 March 2024. 4.Pursuant to the directions made by Chief District Judge Justin Ko on 27 May 2024:
LEAVE TO APPEAL AGAINST MY DECISION ON THE SUMMARY JUDGMENT FOR VACANT POSSESSION It is Unnecessary for the Defendant to seek extension of time 5.In his summons dated 12 April 2024, the Defendant states that he seeks leave to appeal out of time. In light of this indication, the Plaintiff’s legal representatives make submissions on the length of the delay, the reasons for the delay and alleged prejudice. 6.Insofar as the intended appeal against my decision on the summary judgment for vacant possession is concerned, it appears that both parties have proceeded on a wrong premise. 7.The following provisions in the Rules of District Court (Cap 336H) are pertinent:-
8.There is no question that my order dated 26 March 2021 determined the substantive rights of the parties. Since I upheld the summary judgment entered by Registrar Soong, the Defendant is liable to deliver vacant possession of the Property to the Plaintiff, and the Plaintiff may take enforcement action to expel the Defendant from the Property. 9.Hence, pursuant to Order 58, rule 2(4)(b), the Defendant had 28 days to take out an application for leave to appeal. 10.Whilst my order was made on 26 March 2024, the Defendant took out the summons seeking leave to appeal on 12 April 2024. Accordingly, the Defendant’s application for leave to appeal against my decision on the summary judgment was made within time. No Reasonable Prospect of Success and Reason in the Interest of Justice 11.Pursuant to section 63A of the District Court Ordinance (Cap 336), no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard. 12.The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17. 13.As Kwan JA (as she then was) pointed out in 秦錦釗 及 香港特別行政區 [2018] HKCA 167 at para 8, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning, and pinpoint the error in respect thereof. See also李智慧 及 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984 at para 11 (per Chow JA). 14.In my Reasons for Decision, I pointed out that:-
15.In his affirmations and written submissions, the Defendant simply reiterates his stance that he has arguable defences to the Plaintiff’s claims, and that the SPA was a deceitful transaction. 16.The Defendant has not identified any error in my analysis and reasoning. He cannot explain why my findings and conclusion are wrong in law or wrong on facts; nor can he point out any legal basis for possessing the Property. 17.I am of the view that the Defendant’s intended appeal is wholly unarguable and utterly unmeritorious. I cannot see any reason in the interest of justice that the intended appeal should be heard. 18.For completeness, I should also point out there is no room for the Defendant to raise new allegations to accuse the Plaintiff, its holding company and the estate agent of collusion. The Defendant fails to show that the requirements under the rules in Ladd v Marshall [1954] 3 All ER 745 are satisfied. I cannot see any reason why the Defendant did not raise the allegations in question in the affirmation filed to oppose the Plaintiff’s application for summary judgment. I also cannot see how these allegations (which are serious but unsubstantiated and unsupported by documents) may avail the Defendant’s contention that no vacant possession should be delivered. 19.In the premises, I refuse to grant leave to the Defendant to appeal against my decision that affirms the summary judgment for vacant possession of the Property. LEAVE TO APPEAL AGAINST MY DECISION ON THE CASE MANAGEMENT DIRECTIONS PROVIDED BY REGISTRAR SOONG AND MASTER MAURICE LAM 20.My decision to affirm Registrar Soong and Master Lam’s case management directions (see my Reasons for Decision, paras 29 to 41) was plainly interlocutory in nature. 21.Pursuant to Order 58, rule 2(4)(c), the Defendant should have taken out his application for leave to appeal within 14 days. 22.It is not in dispute that the Defendant failed to comply with Order 58, rule 2(4)(c), and there was a delay of 3 days. 23.As Lam VP (as Lam PJ then was) pointed out in The Hongkong and Shanghai Banking Corporation Ltd v Sy Shu Wu & Ors [2018] HKCA 736 at paras 8-10:
24.The learned authors of Hong Kong Civil Procedure (2024) at para 59/4/9 (at p 1269) also pointed out that:
25.Whilst I accept that the length of the delay was minimal and that the Plaintiff would not suffer prejudice, I do not accept that there is a valid explanation for the delay. In my view, it is important for litigants to abide by the procedural rules of the Court, and the fact that the Defendant is not legally represented is not ipso facto an excuse for non-compliant. 26.More importantly, I am of the view that the proposed appeal against my decision on the case management directions is utterly unarguable and without merits. 27.In paragraphs 29 to 41 of my Reasons for Decision, I explained why I refused to interfere with the case management decisions of Registrar Loong and Master Maurice Lam, which were sound and appropriate. I also explained why the Defendant must not seek to thwart or obstruct the present proceedings by making applications for legal aid repeatedly. 28.The Defendant has failed to identify any error in my analysis and reasoning. 29.In any event, the proposed appeal is academic now. The case management directions that the Defendant seeks to challenge were concerned with the Plaintiff’s applications for (i) summary judgment/interim payment in respect of mense profit and contractual damages; and (ii) striking out the Defendant’s counterclaim. The substantive hearing of these applications took place on 23 April 2024 before Master Vincent Kee, who entered interlocutory judgment against the Defendant[6] and struck out his counterclaim. 30.In the circumstances, I cannot see any reason why the appeal should be heard at all. 31.For the above reasons, I declined to exercise my discretion to grant extension of time. Since the intended appeal regarding my decision of upholding Registrar Soong and Master Maurice Lam’s case management decisions is unarguable and academic, it would be futile to grant any extension of time. LEAVE TO APPEAL AGAINST MY DECISION ON COSTS 32.The Defendant also contends that I should not have ordered costs against him without his consent. 33.My decision on costs[7] did not involve the substantive rights of the parties, and as such any application seeking leave to appeal should have been taken out within 14 days pursuant to Order 58, rule 2(4)(c). The Defendant failed to do so. 34.Thus, the discussion set out in paragraphs 23 to 25 above is applicable. 35.Insofar as the question of merits is concerned, the Defendant has failed to provide any explanation as to why I erred in (i) ordering him to pay the costs of the appeal before me; and (ii) conducting summary assessment of costs in lieu of taxation pursuant to Order 62, rule 9A(1)(a). 36.It is trite that costs should generally follow the event unless there are good reasons to depart from the general rule. It is also trite that summary assessment is an effective way to dispose of the question of costs. Depending on the circumstances, this procedure is appropriate where the matter is self-contained and not complicated. 37.At the hearing on 26 March 2024, the Defendant was given opportunities to address me on (i) the question whether he should ordered to pay the costs of the appeal; and (ii) the contents of the statement of costs lodged by the Plaintiff’s solicitors. Since the Defendant’s appeal failed, I could not see any reason why he should not bear the costs incurred by Plaintiff. Having considered the items in the Plaintiff’s statement of costs and adopting a broad-brush approach, I summarily assessed costs at HK$35,000. 38.I cannot see how it can be said that my exercise of discretion on costs was erroneous. The Defendant’s intended appeal is utterly hopeless. 39.In the premises, I decline to exercise my discretion to grant extension of time, which would be futile. CONCLUSION 40.For all the above reasons, I dismiss the Defendant’s summons dated 12 April 2024. 41.Costs should follow the event. I make a costs order nisi that the Defendant do pay the Plaintiff’s costs in respect of the summons dated 12 April 2024, to be taxed if not agreed. Any application to vary such costs order nisi shall be made within 14 days.
Woo, Kwan, Lee & Lo, for the plaintiff The defendant appeared in person [1] See my Reasons for Decision, paras 20-28 [2] See my Reasons for Decision, paras 29-41 [3] In this Decision, I adopt the definitions and nomenclatures that were used in my Reasons for Decision dated 2nd April 2024 [4] See my Reasons for Decision, paras 20-28 [5] See my Reasons for Decision, para 29-41 [6] According to the note prepared by the learned Master which is in the Court’s file, no final judgment was entered against the Defendant because he had not yet delivered vacant possession as of hearing. [7] (see my Reasons for Decision at para 43) | |||||||||||||||||||
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