Jonpaul Associates Limited v. South China Trading Corporation

HCA007536/1981

BETWEEN:-

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Coram: The Honourable Mr. Justice Jackson-Lipkin in Chambers.

Dates of hearing: 12th-15th March 1984

Date and time of delivery of reasons: 15th March 1984 at 3.15 P.M.

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REASONS

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1. This application first came before me on 9th April: It is an application to extend the time for lodging a notice of appeal until 42 days after the date when the transcript of my "notes of proceedings should be made available" to the Solicitor for the Defendants. The Summons is wrong in that there was an official Court Shorthand Writer throughout the whole of the proceedings: What it really means is "when the transcript of the shorthand notes of the proceedings should be made available". By agreement with both parties, the Summons has not been formally amended and re-served: We all know what the application is, and I have not felt it necessary to insist on the expense of drawing, lodging and serving an Amended Summons.

2. In support of the application, there was an Affirmation by Mr. Patrick Hung Tim-choi. When the matter came before me on the 9th, Mr. Wong, Counsel for the Defendant and proposed appellant, explained to me that he was not to be instructed on the appeal, and that the Counsel who were to be instructed knew nothing of the proceedings, and thus time was needed for them to study the transcript. I pointed out to Mr. Wong Order 59 rule 7(1)(b), and asked whether or not that provision would suffice to allay his fear and the fears of those instructing him, that time might run out before the notice  of the appeal could be prepared as he knew exactly what ground would form the foundation of the appeal, and I asked him whether or not those who were to appear on the appeal could prepare what I may call a "holding notice of appeal" and then supplement it after the transcript became available. He said on the 9th that he would like to discuss the matter with those instructing him and with the Counsel proposed to be instructed on the appeal, and I so stood the matter over until to-day.

3. To-day, Mr. Wong told me that he had made enquiries from the Clerk of the Court about the significance of Order 59 rule 5(2) in relation to his problem. Mr. Wong told me that he learned that the practice in Hong Kong was to give a date as soon as the appeal was set down, and that, as a result, he had to renew the application of 9th April under the Summons of 22nd March. Mrs. Lam, who is still unrepresented put in by way of opposition to an extension of time, a letter written by her to me dated 19th April, that is to-day. Two of the points therein are in opposition. The third point in her letter relates to security for costs, and I have explained to her what she must do about that, and she has said that she will consider doing that in due course.

4. On her first point, I have explained to her that Mr. Wong will not be Counsel on the appeal, and I think she accepts that. On the second point, I have explained to her that the Court of Appeal will treat her with the same courtesy and consideration as a single judge; that she will not be put in an unfair position; and that they will ensure that she is not unduly prejudiced by not being represented.

5. This application must succeed for reasons I will give in one moment, but it will not prejudice Mrs. Lam because I am informed by my Judicial Clerk that the official transcript is near completion, and so the extension of time will not be of any great length.

6. Mr. Wong explained to me on 9th of April that the principal ground of appeal will be that he was misled by words that fell from me, or was lulled by me into a false sense of security, so as to induce him not to call any evidence against the Third Party. Of course, Mr. Wong does not say that in relation to his failure to cross-examine the Third Party, who tendered herself for cross-examination, or to his failure to cross examine the witness called by the Third Party. Nevertheless, the allegation is so serious that I feel obliged to grant an extension of time lest there be any suspicion at all of a denial of justice to the Defendant. As I said at the trial, Heaven for fend that anything that I should have said should have led Mr. Wong to believe that he should call no evidence in the Third Party proceedings; although clearly there was no need for him to call evidence as against the Plaintiff. But, so long as there remains a suspicion that that may have been the case, this Court must do all in its power to assist the Defendant in having the matter resolved, provided that there is no serious prejudice to the Third Party. As I have said, in this case there is none. Accordingly, the time for appealing will be enlarged to 42 days after the date when the transcription of the official shorthand note of the proceedings, including the judgment, shall have been received by Messrs. Chu & Lau, Solicitors for the Defendant.

7. Now, Mr. Wong has asked for the costs of this Summons, to include both hearing dates, the 9th and the 19th of April. You, Mrs. Lam, have told me that you oppose that, and I have explained to you the various orders open to me to make. I think that "costs in the appeal" would be the wrong order in these circumstances. I equally think that it would be wrong to make an Order against the Defendant (and proposed appellant) "in any event". The Order which, in all the circumstances of this application and of the action that preceded it, that I feel is the proper one, is that the costs of and incidental. to the Summons of 22nd of March with the hearings of 9th April and to-day, should be the Third Party's costs in the appeal. What that means is, Mrs. Lam, if you succeed on the appeal in upholding the judgment in your favour, you will get such costs as may be allowed you on taxation for the Summons and for the hearings on 9th and to-day. But if you lose on the appeal,  you will not have to pay any of those costs.

Representation:

Third Party in person.