Re Sunni International Ltd

CACV 201/2019, [2026] HKCA 1789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 201 OF 2019

(ON APPEAL FROM HCCW 121 OF 2013)

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D E C I S I O N

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Hon Au JA (giving the Decision of the Court):

1.This is our decision in relation to the Liquidator’s application to vary the costs order nisi we made at [27] of our Decision dated 18 August 2025 (“the Decision”) [2025] HKCA 753.  Unless otherwise stated, we adopt all the abbreviations used in the Decision in this decision.

2.By way of the Decision, we granted Lo’s application for extension of time (“the Extension of Time Application”) to lodge with the Registrar a copy of a sealed Examination Order made by the Judge.

3.In the substantive appeal hereunder, Lo appeals against the Examination Order pursuant to leave granted by the Judge.  As set out in the Decision, Lo through his Former Solicitors filed the Notice of Appeal (“NoA”) on 26 April 2019.  However, the Former Solicitors did not file a copy of the Examination Order as required under Order 59, rule 5(1)(a) within seven days after the service of the NoA.  About four years later, Lo filed a Notice to Act in person on 1 June 2023, and upon the directions of the Registrar, eventually took out a summons (“the Time Summons”) on 24 July 2023 seeking extension of time to file a copy of the Examination Order.  The Liquidators refused to consent to and opposed Lo’s application strenuously[1] on the principal bases that the delay of four years was extremely significant and inexcusable, and the appeal proper is in any event academic.

4.We have explained our reasons in the Decision for allowing the application despite the lengthy delay.  We would not repeat them.  Suffice to say that we found that it is in the interest of justice (which is the guiding principle in these applications[2]) to allow the extension of time sought because:

(1)  The appeal was not academic as contended by the Liquidator: [16] ‑ [20] of the Decision;

(2)  Although the delay of more than four years was very significant, there was nothing to contradict Lo’s case that it was the oversight of his Former Solicitors, whom he was entitled to entrust with in relation to procedural matters, that had led to the failure to lodge a copy of the Examination Order.  In the circumstances, in light of the Judge’s observations in granting leave that Lo had a realistic prospect of success in the appeal, it would be in the interest of justice in the particular circumstances of this case to grant the extension of time sought: [22] ‑ [25] of the Decision.

5.We therefore allowed the application and made a costs order nisi (“Costs Order Nisi”) that costs of the application be to Lo to be assessed summarily.  We further directed Lo to file his Statement of Costs in relation to the Extension of Time Application and the Liquidator to file and serve their Statement of Opposition[3].

6.Lo filed his Statement of Costs dated 27 August 2025, seeking a staggering sum of HK$1,337,500[4].  The Liquidator filed their Statement of Opposition dated 9 September 2025 contending that the costs of the Extension of Time Application should not be more than HK$2,000.

7.At the same time, on 1 September 2025, the Liquidator filed the present summons (“Variation Summons”) seeking to vary the Costs Order Nisi to an order that that costs of the Extension of Time Application be to the Liquidator, to be assessed summarily, with certificate for one counsel.  This is opposed by Lo[5].

8.This is our determination of the Variation Summons.

9.In support of this variation application, Ms Ann Lee for the Liquidator submits that the party applying for time extension should usually and generally be ordered to bear the costs pursuant to Order 62, rule 3(4) of the Rules of High Court, which provides that:

“The costs of and occasioned by any application to extend the time fixed by these rules, or any direction or order thereunder, for serving or filing any document or the doing of any other act (including the costs of any order made on the application) shall be borne by the party making the application, unless the Court otherwise orders.”

10.Counsel further submits that the Time Extension Application was a result of Lo failing to lodge a copy of the sealed Examination Order within time, and he is the party seeking this court’s indulgence and making the said application.  As such, by virtue of Order 63, rule 3(4), Lo should bear the Liquidator’s costs of the application, which would not have been incurred but for Lo’s delay.

11.In this respect, Ms Lee has also fairly and rightly pointed out that this court has previously cautioned against unmeritorious / unreasonable opposition in application of this nature, which could lead to costs consequence imposed on such party unreasonably opposing the application: Keen Lloyd Holdings Ltd v Commissioner for Customs and Excise [2015] 2 HKLRD 909 at [34], per Lam VP; Chan Tsui Yan v Social Workers Registration Board [2018] HKCA 333 at [8] and [9] per Lam VP.

12.Ms Lee however contends that the Liquidator’s opposition to the Time Extension Application in the present case was not unreasonable because:

(1)  The delay of more than four years was very significant as recognised by the court at [25] of the Decision that Senior Counsel representing the Liquidator made “powerful submissions” concerning Lo’s very significant delay.  See also [21] of the Decision;

(2)  More importantly, the following extraordinary circumstances under which Lo was late to lodge a copy of the Examination Order justified the Liquidator’s opposition:

(a)  The over four year’s delay of Lo is “very significant” ([21] of the Decision), which continued after he filed his Notice to Act in Person on 1 June 2023 and after the court directed him to take out the Time Summons by 27 June 2023.  He only came to take out the Time Summons on 24 July 2023 after another direction from the Registrar ordering him to take out the Time Summons by 31 July 2023.

(b)  In fact, his delay is so “significant” that by the time of the Time Summons, the trial of the misfeasance proceedings in HCCW 121/2013 (together with the two High Court Actions issued by the Liquidator) was already imminent and (if Lo were to testify), the Liquidator would have the opportunity to examine him without resorting to the Examination Order.  As a result, the Liquidator indicated his intention not to examine Lo before the trial though he reserved his right to do so afterward (which was understandable as it was by then still open to Lo to elect not to testify).  As an update, the Liquidator now has no intention of executing the Examination Order even if the Liquidator succeeds on the present appeal since Lo did give evidence and discovery at the trial.

(c)  There was no extraneous circumstance preventing Lo or the Former Solicitors from lodging a copy of the sealed Examination Order within time, which has been ready since 21 June 2018 even before his service of NoA on 26 April 2019.

(d)  Still further, his approach in dealing with the court and Messrs TK Tsui & Co (representing the Liquidator) after acting in person, particularly his repeated failure to duly comply with the Court’s directions / orders (see [24(2) ‑ (5)] of the Decision for details), came across to the Liquidator as demonstrating that he had no real intention of pursuing the appeal nor pursuing it timely and diligently.

(3)  In light of his lengthy delay and conduct, there was a reasonable concern that he would not properly and diligently get on with the appeal and would continue to drag on the appeal, wasting the time and costs of the court and the Liquidator even if the time extension was granted.  The Liquidator is a liquidator of a wound-up company with nearly no assets.  Any such potential waste of costs certainly weighed in.

(4)  In the circumstances, it was reasonable for the Liquidator to withhold consent to Lo’s Time Summons and his opposition to Lo’s Time Summons is not so unmeritorious and unreasonable to justify departure from the principle that that parties applying time extension should bear costs.

13.The contentions raised by Ms Lee at [12(2)] are effectively grounds raised by the Liquidator in opposing the Time Extension Application on the basis that the matter had become “academic” and/or that Lo’s conduct had in the proceedings demonstrated consistent non‑compliance of the rules, which we have rejected in the Decision.  They do not show that the Liquidator’s opposition to the application was a reasonable one, particularly considered in light of what we further observe in [14] below.

14.The contention that Lo has no real intention to pursue the appeal is similarly also not tenable and thus does not reasonably justify the opposition of the Extension of Time Application, in particular given the fact that the failure to file the copy of the Examination Order was due to the fault of Lo’s Former Solicitors, and the fact that the Judge had granted leave to Lo to appeal on merits[6]. It is also pertinent to note that in the four years’ “delay”, the Liquidator had not sought to strike out the NoA for want of prosecution.

15.On the other hand, the four years’ delay is per se very significant.  On reflection and when this factor is considered together with all the other circumstances of this case as mentioned above, in the exercise of our discretion, we are of the view that a fair and just costs order that should be made in the present case is that each party shall bear their own costs of the Time Extension Application.  In arriving at this conclusion, we have also taken into account the underlying objectives of procedural and costs economy and proportionality under Order 1A rule 1[7].

16.We therefore vary the Costs Order Nisi to the extent that there be no order as to costs of the Time Summons.

17.Although we vary the Costs Order Nisi, the Liquidator is also not successful in obtaining his proposed order to have costs of the Time Summons, we therefore further order that there will be no order as to costs of the Variation Summons.

Written submissions by the respondent, acting in person

Written submissions by Ms Ann Lee, instructed by TK Tsui & Co, for the Liquidator