The Incorporated Owners of Tuen Mun Hung Cheung Industrial Centre (Phase 1) v. United Hong Kong Ltd.

HCMP004990/2000

HCMP 4990/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 4990 OF 2000

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Coram: Keith JA in Chambers

Date of Hearing: 10 October 2000

Date of Judgment: 10 October 2000

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J U D G M E N T

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1. On 22 November 1999, Cheung J handed down judgment in an action relating to an external wall of an industrial building in Tuen Mun. He ordered the Defendant to reinstate the wall. The Defendant wanted to appeal but no steps were taken to serve a notice of appeal. No reason has been given for that, but it may be that the Defendant's then solicitors did not do so because they were in dispute with the Defendant over their fees. Subsequently, the Defendant instructed new solicitors, but even then no steps were taken to serve a notice of appeal. Again, no reason has been given for that, but it may be that the Defendant was then deflected by the proceedings begun against it by its former solicitors in the Small Claims Tribunal for recovery of their fees.

2. For their part, the Plaintiff's solicitors had not taken any steps to have sealed the order giving effect to the judgment which Cheung J had given. The order was only sealed on 18 July 2000, almost eight months after Cheung J had handed down judgment. Accordingly, although the Defendant could have served its notice of appeal before then, the time limited by the Rules for the Defendant to serve its notice of appeal did not begin to run until then.

3. The time limit for serving a notice of appeal in respect of an appeal to the Court of Appeal was reduced earlier this year. As a result, a notice of appeal from Cheung J's order had to be served within 28 days of the sealing of the order. As was explained in Chung Fai Engineering Co. v. Maxwell Engineering Co. Ltd. (HCMP 4473/2000), the Defendant's time for serving its notice of appeal did not run during the month of August. It follows that its time for serving its notice of appeal did not expire until 15 September. The Defendant had not served its notice of appeal by then, and accordingly on 27 September it applied for an extension of time for serving its notice of appeal. Mr Yuen Ching Pong for the Plaintiff was minded to consent to the application, but since he originally told me that he was opposing the application I do not think that it would be right to proceed on the basis that the Plaintiff's consent has actually been obtained.

4. I have already said that the Defendant could have served its notice of appeal before the judgment had been sealed, but since the time limited by the Rules for serving a notice of appeal did not begin to run until 18 July, what has to be looked at is why the notice of appeal was not served between that date and 15 September when the time expired. The reason for that was that neither the Defendant nor its new solicitors had been informed that the order giving effect to the judgment had been sealed on 18 July. Thus, the Defendant did not know that the time limited by the Rules for serving the notice of appeal had begun to run. It was only on 25 September that the Defendant discovered that the order had been sealed on 18 July. It then proceeded with commendable speed to apply two days later for an extension of its time for serving the notice of appeal. In these circumstances, I think that the overall interests of justice require the Defendant to be granted the extension of time for which it seeks, and I extend the Defendant's time for serving its notice of appeal to 4.00 p.m. on 13 October, by when the Defendant is confident that the notice of appeal can be served.

5. Finally, I should add that this judgment does not mean that in every case the party who obtains the sealing of an order must notify the other party of the date of the sealing of the order. However, when there has been, as in the present case, an unusually long interval between the date of the order and the date on which it was sealed, it would be prudent for the party who obtained the sealing of the order to notify the other party of the date on which the order was sealed.

Representation:

Mr Yuen Ching Pong, of Messrs Li, Wong & Lam, for the Plaintiff.

Mr Man Yuen Sing, a director of the Defendant, for the Defendant.