Tam Chick Kwan v. Ng Siu Kwan

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 8279 OF 1980

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Coram: H.H. Judge Cruden in Court.

Date of Judgment:

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JUDGMENT

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1. I delivered judgment herein on the 17th day of July, 1981. Time for appeal expired on the 31st day of July 1981. No summons for leave to appeal had been filed by that date. On the 11th day of August 1981 the plaintiff filed a summons applying for the following orders:-

2. On the hearing of the plaintiff's summons no affidavit explaining the reasons for the delay had been filed nor was any explanation advanced orally. Counsel for the plaintiff did, however, elaborate the grounds of appeal. These may be summarised as being that the Court erred in finding that it would manifestly not be just and equitable to order the defendant to vacate and that the principle not but in CHOW Wing v. YUEN Chi-hung & Another Civil Appeal No.145/80 had not been applied.

3. The summons was opposed by the defendant on two main grounds. First, it was submitted that when the time limited for appeal was 14 days a further delay of 11 days was not minimal. Further no affidavit explaining the delay had been filed. Secondly, the grounds of appeal were unfounded as not only was Chow's case (supra) followed but it was expressly cited by the Court in its oral judgment.

4. As to the first issue Order 3 Rule 5 Rules of Supreme Court grants the Court a discretion to extend time. Certainly time should be extended to avoid injustice. But as "The Supreme Court Practice 1979" at page 17 notes, there has to be material on which the Court can exercise its discretion. On this point too, I was referred by Counsel for the defendant to Stevenson v. Chartered Bank (1977) H.K.L.R. 165.

5. It may be that a Court in some circumstances will not insist upon reasons for the delay to be deposed to in an affidavit. However, some reasons should be advanced at leant from the Bar. In this case there was neither an affidavit nor any explanation by Counsel. In these circumstances there simply was no material for me to exercise my discretion and I therefore an unable to grant the extension of time.

6. That disposes of the summons. However, if I am wrong in my ruling on that ground I would further observe that the grounds of appeal are largely on matters of fact. Under s.68A appeals are limited to questions of law. To the extent that the grounds raise matters of fact no appeal lies. The principles applicable to the amended Section 53(2) are now well settled. It was alleged that the Court did not apply Chow's case. That case was expressly referred to in the Court's oral and subsequent written judgment. I therefore came to the conclusion that even if time had been extended that this was not a proper case for leave to appeal have been granted.