She Wai Hung v. Juliano Lim and Others

HCMP86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 86 OF 2008

(On An Intended Appeal from HCMP 6472/2001)

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BETWEEN:

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Before : Hon Yuen JA in Chambers

Date of hearing (9:30 am) : 25 January 2008

Date of decision (2:00 pm) : 25 January 2008

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DECISION

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Hon. Yuen JA:

1.This is an application by She Wai Hung for an extension of time to serve a notice of appeal.  Before I consider the relevant principles and their application, I would first set out the circumstances of this case. 

Proceedings

2.Golden Bright Ltd (“the company”) was a company in which Mr She and Juliano Lim were shareholders.  Mr She held 40%of the shares. 

3.As a result of certain disputes, in 2001 Mr She commenced s.168A proceedings for an order that Mr Lim buy him out.

Buy-out order

4.On 27 February 2004 Kwan J ordered Mr Lim to buy out Mr She.  There was no appeal from this order.

The valuation exercise

5.However there followed disputes between the parties on the valuation of the shares.  The matter went back to Kwan J in June 2006.  On 21 September 2006 Kwan J handed down a decision on the valuation issues.  She gave directions on the further progress of the valuation and also ordered Mr Lim to pay Mr She interest on the purchase price of the shares when the valuation exercise was completed and his costs.

6.In November 2006 Kwan J gave further directions for the determination of the valuation.  She gave leave to each party to call his own accounting expert and to cross-examine the other party’s expert at a hearing which was to be held in August 2007 which eventually took 4 days. 

Kwan J’s order on valuation

7.On 26 November 2007 Kwan J handed down a decision.  After adjudging various issues pertaining to the valuation, she ordered Mr Lim to buy Mr She’s shares for a net sum of about $2.7 million.  She also ordered Mr Lim to pay Mr She interest on that sum and the costs of the valuation.  That order was filed on 20 December 2007 by Mr She’s solicitors.

Mr She’s legal representation

8.I pause to note that Mr She had been represented by the same set of solicitors and counsel throughout the valuation hearings, including the hearings in August 2007 which concluded with Kwan J’s decision in November 2007.

Mr Lim’s appeal

9.Four days later on 24 December 2007, Mr Lim filed a notice of appeal.  The appeal papers were served on Mr She’s solicitors and was set down on the same day.

Mr She’s application for extension of time

10.On 16 January 2008 Mr She (now acting in person) issued a summons for an extension of time to file a notice of appeal.  In fact the correct position procedurally is that since Mr Lim has served Mr She with a notice of appeal, Mr She is in the position of a respondent. 

Time for service of Respondent’s Notice

11.A respondent to an appeal who wishes to contend on the appeal that the decision of the court below should be varied, or to contend by way of cross-appeal that the decision of the court below was wrong in whole or in part, has 14 days to serve a Respondent’s Notice after the day of service on him of the notice of appeal (Order 59 rules 6 (1) and (3) RHC).  After he serves the Respondent’s Notice on the appellant, he has 2 days to lodge it with the Registry (Order 59 rule 6(4) RHC).

12.So what Mr She should really be asking for is an extension of time to serve a Respondent’s Notice on Mr Lim.

13.Since Mr Lim served his Notice of Appeal on Mr She on 24 December 2007, Mr She had until 7 January 2008 to serve his Respondent’s Notice and so he was out of time by 8 days when he issued the present summons on 16 January 2008.

Guidelines

14.The guidelines to be applied when the court considers an application for an extension of time to serve a Respondent’s Notice have been set out in Hong Kong Civil Procedure 2008, p.910, §59/6/10:

“

The present practice is that where it is a respondent’s notice to affirm (see para. 59/6/1) an extension of time will normally be granted, unless it can be shown that granting it will cause significant prejudice to the appellant.  Where, however, it is a respondent’s notice to vary or a respondent’s notice by way of cross-appeal, an extension will only be granted if good reasons for doing so are shown (see generally Magmasters Ltd v VCS Ltd [1984] 1 WLR 1208, [1984] 3 All ER 510, C.A)”.

In Magmasters the English Court of Appeal held that as a matter of logic, the time limits for a cross-appeal should be applied in exactly the same way as they are applied to a notice of appeal (p.1209 F-G).    

Discussion

15.Mr Wong counsel for Mr Lim says that Mr She’s appeal is not a cross-appeal.  On that basis, in accordance with the guidelines stated above, an extension of time should be granted, as there is no evidence from Mr Lim that he would suffer significant prejudice.  

16.Had Mr Lim’s position been otherwise, then the court would have to take into account other guidelines such as: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the prejudice to the other party to the appeal (Chiu Sin Chung v Yu Yan Yan, Angela [1993] 1 HKLR 225).  The delay is not a particularly long one but there is no proper explanation for the delay.  Mr She has simply said that he did not know that he needed to serve a notice of appeal within 14 days and that he only found out about that rule when responding to the notice of appeal.  That is not a reason for the delay.  Mr She could have asked his solicitors what the deadline was, or even made inquiries with the Unrepresented Litigants Resource Centre.

17.But in light of Mr Wong’s concession that this is not a cross-appeal, I should say no more.

Order

18.I will extend time for Mr She to serve his Respondent’s Notice within 7 days of today.  He should lodge it at court within 2 days after service. 

19.Having heard the parties’ submission on costs, I would make no order as to costs.  I regret to have to say that the court has had absolutely no assistance from Mr Lim’s legal advisers.  Despite the fact that the summons had been served on them for more than a week and despite the fact that Mr She was acting in person, no skeleton submission was provided to the court notwithstanding repeated inquiries made by court staff.  Mr Wong says he was only instructed late yesterday and of course I accept that but that does not detract from the fact that no assistance was provided at all whether on the issue whether this should be regarded as a cross-appeal or on the principles to be applied.

The Petitioner/Applicant in person, present.

Mr William Wong instructed by Fairbairn Catley Low & Kong for the 1^st Respondent.