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

CACV 306/2019

[2025] HKCA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 306 OF 2019

(ON APPEAL FROM HCB 4475/2002)

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D E C I S I O N

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1.On 5 December 2024, I dismissed three applications made by the applicant. The three dismissed applications were:

(1)  the applicant’s application to extend time for a review of the bill of costs of the 1^st respondent;

(2)  the applicant’s application to review a Master’s review on the taxation of an allocatur in respect of a bill of the 2^nd to the 4^th respondents (“the Review Summons”); and

(3)  the applicant’s application for a stay of certain costs order (“the Stay Summons”).

2.My decisions are to be found in [2024] HKCA 1196 and [2004] HKCA 1189.

3.When my decisions were made at the end of the hearing on 5 December 2024, I gave fairly detailed reasons for dismissing the applicant’s three applications. In relation to the applicant’s application against the 1^st respondent, I also carried out a summary assessment of costs at the hearing.

4.My oral decisions and reasons for dismissing the applicant’s applications were subsequently transcribed from the court’s recording system and reduced into writing and were then uploaded onto the judiciary website on 27 December 2024.

5.On 6 January 2025, the applicant took out a summons to ask for leave to appeal out of time against my decision of 5 December 2024, dismissing the applicant’s application against the 1^st respondent.

6.On 13 January 2025, the applicant took out a further summons to ask for leave to appeal out of time against my decision of 5 December 2024, dismissing the Stay Summons against the 2^nd to 4^th respondent. It should be noted that the applicant does not seek leave to appeal against my dismissal of the Review Summons. This is clear from two things:

(1)  paragraph 1 of the summons dated 13 January 2025 makes reference to paragraph 27 of my decision in [2024] HKCA 1189, which is to do with the dismissal of the stay summons; and

(2)  paragraph 1 of the 5^th affirmation of Mr Alan Tang dated 13 January 2024 is again concerned with the dismissal of the summons.

7.This morning, Mr George Chu, the applicant’s counsel, confirms that this is the extent of his extension of time application to appeal against the 2^nd to 4^th respondents.

8.It is common ground that leave to appeal is required for the applicant to appeal against my decisions made on 5 December 2024. In considering whether time should be extended for the purpose of applying for leave to appeal, the court should conduct a discretionary balancing exercise by taking into account relevant circumstances such as the length and reasons for the delay, the merit of the intended appeal, and the prejudice to the winning party if the time extension is granted. See Lee Chick Choi v Best Spirits Co Ltd (unreported, HCMP 371/2005, 21 May 2015) [19] (Kwan JA).

9.To support the time extension application, Mr Chu submits that (1) the length of the delay is not exorbitant and the applicant’s reasons for delay are reasonable, (2) there are reasonable prospects of success in the intended appeal, and (3) any possible prejudice to the respondents is minimal.

10.I reject these submissions.

11.As to the reasons for the delay, the applicant claims in the 5^th affirmation of Mr Alan Tang, filed to support the applications for extension of time, that the written form of my decisions was not uploaded onto the judiciary website until 27 December 2024, and that his solicitors did not receive any prior notice from the court of the availability of the written decision.

12.In my view, these are plainly insufficient reasons for not lodging his appeals within time. The applicant’s solicitors and counsel were physically in court when I gave my decision and reasons on 5 December 2024. It is disingenuous for the applicant to suggest that he needed the written form of the decision before an appeal could be made. I consider the applicant’s delay to be wholly inexcusable.

13.Where a delay is inexcusable, although insubstantial, a party seeking an extension of time must show a real prospect of success on the merits, see KNM v HTF (unreported, HCMP 288/2021, 7 September 2011) [19] (Fok JA), following Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125, at 129I (Le Pichon JA).

14.Given that the applicant’s delay is inexcusable, he must show that his intended appeals have a real, and not only reasonable, prospect of success on the merits. However, Mr Chu has not attempted to demonstrate how the applicant has a real prospect of success in his intended appeals. In his written submissions, Mr Chu simply asserts that the applicant has real prospects of success.

15.In any event, the matters set out in the annex of the summons dated 6 January 2025 clearly do not demonstrate that the applicant has a real prospect of success in the intended appeals.

16.In that document, the applicant essentially repeats the points that were taken on the previous occasion, without fully engaging with the reasons given by this court for dismissing the applicant’s application to extend time as against the 1^st respondent. The document is simply filled with assertions that the court had erred. There is nothing in that document to demonstrate that the court had erred on principle or that the discretion was wrongly exercised.

17.Further, Mr Chu has not said anything to explain why the applicant’s intended appeal against my dismissal of the Stay Summons has a real prospect of success.

18.As far as prejudice to the respondents is concerned, there is no basis for the applicant to submit that any possible prejudice is minimal. It is self-evident that to allow the applicant an extension of time to apply for leave to appeal against my decisions will further delay the payment of costs by the applicant to the respondents, which will obviously amount to prejudice.

19.For the reasons that I have given, there is absolutely no basis in the applicant’s applications for extension of time to apply for leave to appeal, and I dismiss both of them.

20.There are two other matters I need to deal with that arise out of the applicant’s summonses.

(1)  In paragraph 2 of the summons dated 6 January 2025, the applicant asked for leave to file and serve another application under Order 62 rule 33 for a review of the bill of costs of the 1^st respondent dated 24 January 2022. The applicant has said nothing about this application, and I also dismiss it.

(2)  In paragraph 2 of the summons dated 13 January 2025, the applicant asks for a stay of the enforcement of certain costs order pending his intended appeal to the Court of Appeal against my decision. I refuse to grant a stay for two reasons. First, there is currently no subsisting appeal to the Court of Appeal against my decision because the applicant has failed to get an extension of time to make an application for leave to appeal. Second, and in any event, I do not consider that the applicant’s intended appeal has any prospect of success. I therefore dismiss paragraph 2 of the summons dated 13 January 2025.

21.I have dismissed both of the applicant’s summonses in their entirety, and I will now hear the parties on costs.

(Discussion re costs)

22.Costs of and occasioned by the summons dated 6 January 2025 be paid by the applicant to the liquidator of the 1^st respondent on an indemnity basis, summarily assessed at $52,000 to be payable forthwith.

23.Costs of and occasioned by the summons dated 13 January 2025 be paid by the applicant to the 2^nd to 4^th respondents on an indemnity basis, summarily assessed at $120,000 to be payable forthwith.

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, instructed by Hom & Associates, for the 2^nd to 4^th respondents