Ng Ah Kiu and Another v. Lau Wing Keung

HCMP002509/1983

IN THE COURT O F APPEAL

BETWEEN

AND BETWEEN

Coram: Roberts, C.J. & Kempster, J.

Date: 23rd November, 1983

Date of Hearing: 23rd November, 1983

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JUDGMENT

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Kempster, J:

1. We are here considering two actions in which, on the 22nd  February of  this year, interlocutory judgment was entered in favour of the plaintiff landlord. The interlocutory judgments were couched in these terms:

That sentence limited the function and jurisdiction of the Master.

2. The two matters came before Master Hansen on the 3rd October 1983 when he permitted amendments of the Statement of Claim upon the basis of which interlocutory judgment had already been entered. The permitted amendments allowed special damage to be pleaded. Orders giving leave to amend pleadings need not be drawn up having regard to the provisions of Order 42 rule 4.

3. Not unnaturally the defendant wishes to appeal against the Master's orders but, having regard to the terms of Order 59 rule 4(1)(a), the defendant's time had expired by the 18th October.

4. On the day following that on which leave to amend was granted, namely the 4th October, judgments were entered by the Master not for the monthly rates required to quantify the mesne profits, which were his remit, but for the sums now additionally or alternatively claimed by way of special damages. Those judgments were not perfected until the 15th of November of this year and, having regard to the provisions of Order 59 rule 4(1)(e), the defendant to serve and file notices of appeal.

5. Mr. Bernacchi, who appears on behalf of the defendant, seeks an extension of time to appeal against the interlocutory orders. He says that the any appeals against the final assessments and any appeals against the interlocutory orders are matters inextricably interwoven. But he has to go further than that. While the Court has a discretion to extend time it must have material upon which to exercise such discretion. In order to ascertain whether such material exists the Court will look to the evidence filed by the party seeking the exercise.

6. In the present context we are furnished with an affirmation made by the defendant on the 13th November of this year and the material passage, dealing with the situation while time was running, is paragraph 4. As it is only to that paragraph that We can usefully look I will read it in full:

"After the aforesaid Orders were made against me I intended to appeal but I now find that the time limited by the Rules of the Supreme Court for so doing has expired in that I have been advised that they or some of them are interlocutory orders. The delay been incurred partly because I am the managing director of Chung Bong Chinese herbs and provisions Company Limited which has seven branches as at the 3rd October 1983 and on the 4th October 1983 (I interpolate that this was the date when the assessment was made.) a new branch was opened at No. 7 Fuk Lo Tsuen Road, Ground floor, Kowloon City, Kowloon. During the period for about four weeks from the 19th September 1983 to the 17th October 1983, I was engaged in various matters such as ordering stocks, canvassing customers and interviewing staffs for the new branch and accordingly have been unable properly to instruct solicitors to begin proceedings on my behalf".

7. It is clear to me beyond a peradventure that the reason for the delay in giving notices of appeal against the interlocutory orders was the defendant's pre-occupation with his own business. It may well be that, for economic reasons, he had very good reason to be pre-occupied with it. But that is not a basis upon which the discretion of this Court can be exercised in his favour. For my part I would refuse the application.

Roberts, C.J.

8. I agree, I have nothing to add.

Representation:

B. Bernacchi Q.C., H.Y. Wong (Lo, Wong & Tsui) for appellant

R.K. Sujanani (Ip, Ku & Stoppa) for respondent