The Joint and Several Trustees of the Property of So Ching Wan v. Assen Ltd (in Liquidation) and Others

CACV 306/2019

[2024] HKCA 1196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 306 OF 2019

(ON APPEAL FROM HCB 4475/2002)

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BETWEEN

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D E C I S I O N

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1.By a notice of appeal dated 7 August 2024, the applicant seeks to appeal against the decision of Master Yip given on 30 July 2024 dismissing the applicant’s application to extend time for a review of a bill of costs of the 1^st respondent, which has previously been taxed.

2.I bear in mind that this is an appeal from a master’s decision and this is a de novo hearing.  I therefore apply the principles when the court is being asked to exercise its discretion to extend time pursuant to Order 3 rule 5.  As Ribeiro PJ said in Astro Nusantara International BV v PT First Media TBK (2018)  21 HKCFAR 118 at[53], the discretion to extend time conferred by Order 3 rule 5 is broad and unrestricted and is designed to enable justice to be done between the parties.

3.Having considered the parties’ submissions, I have come to the view that the applicant’s extension-of-time application must be dismissed.  My reasons are as follows.

4.First, the applicant has failed to give good or sufficient reasons for the extension of time. 

(1)  It must be pointed out the occasion before Master Yip on 30 July 2024 was already the third occasion when the applicant sought an extension of time on this matter.

(2)  On 28 May 2024, the applicant took out a summons for extension of time.  This was the first time summons.  At the time, the applicant sought an order that time be extended to a date which was 14 days from the date of issue by the court of the relevant transcript for taxation.  Master Lai granted the time extension on 4 June 2024.  The transcript became available to the applicant on 3 July 2024.  So, under the first time extension, the applicant was able to make the review application by 17 July 2024, which was 14 days after the transcript became available to the applicant.

(3)  According to a letter dated 12 July 2024, the applicant accepted that he had notice from the court to collect the transcript on 3 July 2024.  But he did not do so until 11 July 2024 due to “internal misunderstanding and miscommunication”.  He also said in the letter that he had to make a business trip from 15 to 18 July 2024.  He therefore took out a second time summons on 12 July 2024, asking for an extension of time until 26 July 2024. That second time summons was heard before Master To at a hearing on 23 July 2024.  The applicant did not even attend the hearing on that day, and Master To dismissed the applicant’s time extension application.

(4)  On 23 July 2024, the applicant took out a third time summons, asking for an extension of time until 30 July.  That application was heard by Master Yip, and was dismissed. 

(5)  Under Order 62 rule 33(2), an application for review may be made within 14 days after the conclusion of taxation.  The taxation was concluded by 24 April 2024.  The applicant should therefore have made the review application by the beginning of May 2024.  Even assuming that the applicant was reasonable to wait for the transcript of the taxation hearing before making the review application, it seems to me that he had sufficient time to do so after the transcript became available on 3 July 2024.  The applicant has not provided any cogent explanation of what he meant by “internal misunderstanding and miscommunication” when he failed to get the transcript on 3 July.  Further, the fact that he had to go on a business trip is not, in the particular circumstances of this case, a good reason to extend time.

5.My second reason for refusing to extend time is that the applicant has misused the court procedure to seek the extension of time.  His second time summons was heard by Master To on 23 July 2024.  The applicant must have known about the date and time of the hearing because they were clearly stated on the summons which he signed.  But he simply failed to turn up to the hearing.  And there is no proper explanation from the applicant as to why he was absent. Moreover, if the applicant was dissatisfied with the dismissal of the time summons by Master To, he should have, in my view, appealed against the Master’s dismissal order and not to issue yet another time summons on the same day on 23 July 2024.  I note that no explanation has been given by the applicant as to why he failed to appeal against Master To’s order.

6.My third reason for refusing to extend time is that the applicant has not begun to show what he intends to do in the review.  In order for the court to exercise its discretion, it is incumbent on the party seeking the court’s indulgence to demonstrate that the steps he intends to take would have some merits.  Without even showing what he intends to achieve in the intended review, or giving the court some idea on the merits of his intended review, it is not possible for the court to exercise discretion in the applicant’s favour.  

7.My fourth and last reason for not extending time is that prejudice is clearly caused to the 1^st respondent if an extension of time is granted.  It is self-evident that an extension of time will cause delay to the payment of costs by the applicant to the 1^st respondent.  I cannot agree with the applicant’s assertion that no unfair prejudice will cause to the 1^st respondent.

8.For these reasons, I consider that Master Yip was clearly correct in dismissing the applicant’s time extension application on 30 July 2024.  I dismiss the applicant’s notice of appeal dated 7 August 2024.

9.I will now hear the parties on costs.

Mr George Chu, instructed by K B Chau & Co, for the applicant

Mr Kurt Ng, instructed by Johnnie Yam, Jacky Lee & Co, for the 1^st respondent

Mr Vincent Lung and Ms Ivy Ho, instructed by Hom & Associates, for the 2^nd to 4^th respondents