Shing Wei Enterprises Co. Ltd. v. Wu Hsiu Miam

DCCJ003033/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3033 OF 2001

Coram: H H Judge Cheung in Chambers

Date of Judgment: 19 July 2001

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J U D G M E N T

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1.This is an appeal from the decision of Madam Registrar Au-Yeung made on 20 June 2001 refusing an application by the defendant to file a further affirmation in opposition to an Order 14 application made against him in these proceedings.

2.This morning the parties reached a complete agreement as to what order they would like to obtain from the court. Amongst other things, they wanted me to allow the appeal and give leave to the defendant to file his further evidence. Of course, a court sitting in its appellate jurisdiction does not, in my view, sit there simply to rubber stamp the parties' agreement, particularly when it involves allowing an appeal and reversing a decision made by a judicial officer in a court below. This is to some extent reflected in the practice of the Court of Appeal as pointed out to me by counsel and as set out in the White Book (para. 59/1/20).

3.Today the matter is slightly different. Firstly, although this is an appeal in name, in substance this is a de novo hearing it being an appeal from the learned registrar to a judge. Secondly, the substance of the appeal involves a procedural matter, i.e. the filing of further evidence in an Order 14 application. It involves case management and procedure.

4.So in those circumstances I think the parties' agreement does carry a lot of weight and I am satisfied that I should accede to the parties' request. So I am making the following orders by consent:

(1) The defendant's appeal dated 4 July 2001 be allowed.

(2) The order of Madam Registrar Au-Yeung dated 20 June 2001 be set aside.

(3) Leave to the defendant to file and serve a further affirmation of the defendant as per the copy annexed to the defendant' summons filed herein on 8 June 2001 within three days from the date hereof.

(4) Leave to the plaintiff to file and serve evidence in reply within 14 days thereafter.

(5) No further evidence be filed without leave of court.

(6) The costs of this appeal and the hearing below as well as the costs of the application be paid by the defendant to the plaintiff in any event. Certificate for counsel for today's hearing.

Representation:

Present: Mr Patrick Chong, instructed by So & Co., for the Plaintiff

Mrs Dora Chan, instructed by C K Mok & Co., for the Defendant