Ronia Ltd. v. William Clarke

HCMP003172/2002

HCMP 3172/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3172 OF 2002

(ON APPEAL FROM HIGH COURT ACTION NO. 3972 OF 2000)

Coram: Hon Cheung JA in Chambers

Date of Hearing: 3 September 2002

Date of Decision: 3 September 2002

Date of Reasons for Decision: 6 September 2002

___________________________

REASONS FOR DECISION

___________________________

1.On 3 September 2002, I gave a decision in respect of the plaintiff's application for extension of time to appeal. I now gave the reasons for my decision.

2.On 11 October 2001, Deputy High Court Judge Poon ordered the plaintiff to pay security for costs in the sum of $500,000 in respect of its action against the defendant. The security was to be paid within 21 days of the order. The order further provided that the plaintiff's action be stayed until such time the security so ordered was paid into court.

3.The order was sealed on 19 October 2001. On 31 October 2001 the plaintiff served the notice of appeal on the defendant's former solicitor, Messrs Barlow Lyde & Gilbert ("Barlow"). This was accepted by the defendant's present solicitors. The plaintiff had also paid $1,045 as registration fee for the notice of appeal on the same date.

4.On 7 November 2001, Mr. Ng Shi Man ("Mr. Ng") was authorized by the court to represent the plaintiff. On 8 November 2001, Mr. Ng attended the Registry with the necessary documents. He said he was told by a staff there that he had delayed one day and advised him to apply for leave to appeal out of time. Another staff of the court contacted him on 19 November 2001 and asked why he did not follow up with the matter after he had paid the registration fee. Mr. Ng was busily preparing for the application when he felt ill on 20 November 2001. Previously he had tuberculosis and had been advised by his doctor of the danger of the illness reoccurring if he worked too hard. He decided to return to his home in the Mainland to convalesce.

5.On 17 July 2002, the defendant issued a summons asking, among other things, that unless the security be paid within 21 days the plaintiff's action be dismissed. On 5 August 2002, the master ordered that unless the plaintiff made payment in on or before 4 September 2002 the action be dismissed ("the unless order"). Mr. Ng returned to Hong Kong to attend at hearing. On 12 August 2002, the plaintiff issued a summons seeking extension of time to appeal and setting aside the order of Deputy Judge Poon.

6.Order 59 Rule 4 of the High Court Rules requires the notice of appeal from an interlocutory order to be served within 14 days from the sealing of the order. The order was sealed on 19 October 2001. The notice of appeal was served on 31 October 2001. It was served within time. The plaintiff does not need extension of time to serve the notice of appeal.

7.Based on what Mr. Ng said what is more likely to have happened is that the advice given to him was on the setting down of the appeal. However, it is no longer possible to verify the matter from the Registry due to the lapse of time.

8.Order 59 Rule 5 requires, among other things, the appeal to be set down within 7 days after the date on which service of the notice of appeal was effected. The procedure requires the appellant to lodge with the Registrar,

（1） a copy of the judgment or order, and

（2） two copies of the notice of appeal, one of which is endorsed with the amount of the fee paid and the other endorsed with a certificate of the date of the service of the notice.

See a discussion on the time for the service of the notice of appeal and setting down in paras. 59/3/4, 59/5/1 and 59/5/2 in Vol. 1 of the Hong Kong Civil Procedure 2002

9.The plaintiff had seven days to set down the appeal after the date of service of the notice of appeal on 31 October 2001. This seven-day period should end on 7 November 2001. However, as this seven-day period includes a Sunday, which is excluded in counting the seven-day period under Order 3, rule 2(5), the plaintiff was entitled to set down the appeal on 8 November 2001 and if the documents were in order the court should have set down the appeal on 8 November 2001. No extension of time for setting down was required on that date.

10.Based on what the plaintiff said, he was not responsible for the confusion that had happened. However, as by now the appeal has not been set down, I granted time to the plaintiff to set down the appeal on or before Saturday 7 September 2002.

11.As to the unless order, I extended time for the plaintiff to comply with the order of Deputy Judge Poon until after the determination of the plaintiff's appeal. This order is subject to the plaintiff setting down the appeal as ordered.

12.I further made no order as to costs of the application.

13.I will further order that the transcript of the decision of Deputy Judge Poon to be obtained and included in the appeal bundle.

Representation:

The plaintiff, in person, represented by Mr. Ng Shi Man

Mr. Michael Withington of M/s Herbert Smith for the defendant