Questnet Ltd v. Kurt Georg Rocco Rinck and Another
Read the full judgment text of HCA 1475/2006 on BabelCite. This High Court CFI judgment was delivered on 7 April 2008.
1. On 18 February 2008, I dealt with an application by Mr Rinck to set aside a summary judgement. The order made on that application was following terms:
Cites 2 cases
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HCA 1475/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1475 OF 2006 ----------------------
---------------------- Before: Hon Saunders J in Chambers Date of Hearing: 7 April 2008 Date of Decision: 7 April 2008 Date of Reasons for Decision: 10 April 2008 ------------------------------------------------------ R E A S O N S F O R D E C I S I O N ------------------------------------------------------ 1.On 18 February 2008, I dealt with an application by Mr Rinck to set aside a summary judgement. The order made on that application was following terms:
2.Mr Rinck now seeks to extend the time to appeal against that decision. The order was perfected on 25 February 2008. Pursuant to O 59 r 4(1)(a), the time to appeal expired on 10 March 2008. The summons seeking to extend time was filed on that day, and is accordingly filed within the relevant time period. 3.I heard argument on the matter on 7 April 2008, and dismissed the application, with reasons to follow. These are my reasons. 4.The principles for extension of time to appeal to the Court of Appeal require the court to consider four matters: (1) the length of the delay; (2) the reason for the delay; (3) the chances of the appeal succeeding if time is extended; and (4) prejudice to the respondent. 5.The length of the delay is not long. The extension has been sought within the required time, and if the notice of appeal was filed now the appeal would be about one month out of time. Mr Maurellet does not rely upon the length of the delay. 6.Mr Rinck has not personally filed an affidavit in support of the application to extend time. Instead an affidavit has been made by Mr Rinck’s solicitor, Mr Healy, on 10 March 2008. In that affidavit an assertion is made that Mr Rinck has found it difficult to pay legal costs, that he anticipated that funds would be available to cover the cost of preparing the appeal in early March, but that there was a delay in funds becoming available. Mr Healy says further:
7.Today Mr Healy frankly, and properly, acknowledges to me that he has received no funds and is unable to take the matter beyond the circumstances set out in the affidavit. 8.There is no evidence at all of any lack of funds on the part of Mr Rinck. Mr Maurellet points out that Mr Rinck has apparently been able to fund Swiss lawyers to take steps to prevent the enforcement of the judgment sought to be set aside, in Switzerland. I reject the proposition that Mr Rinck is unable to provide funds to obtain legal advice. 9.In the affidavit Mr Healy refers to the fact that counsel who appeared for Mr Rinck previously is presently on holiday. That cannot be a proper reason for any delay. The judgment sought to be appealed is only five pages long, and deals with one discrete point. It simply does not matter that counsel who appeared on the original application is presently out of Hong Kong. Advice as to the possible chances of success of an appeal could be obtained from any other counsel. 10.Nothing is said to me as to any prospect of success of an appeal. The principles applied followed established English principles recently approved by the Hong Kong Court of Appeal in Ho Tung v H Yuen [2007] 4 HKLRD 384. I accept Mr Maurellet’s submission that there can be no serious suggestion that there was an error of law in the judgment. 11.The judgement involved the exercise of discretion. Nothing is suggested to me as to any basis upon which it could be argued that wrong principles were applied in the exercise of discretion. 12.The absence of prejudice to a would-be respondent is not a ground for extending time: see Secretary for Justice v Yaumati Ferry Company Ltd [2001] 1 HKC 125 at 133. Nothing turns on the fact that QuestNet can point to no other prejudice than that they would be denied finality in litigation. 13.Have regard to all of the circumstances are not satisfied any proper case at all has been made out to extend time. The summons to extend time was accordingly dismissed with costs to QuestNet. 14.Subsequent to the hearing I received a request from the solicitors for QuestNet that costs should be assessed on a gross sum basis. It is eminently sensible in a small matter such as this that there should be gross sum costs, and the parties should not be put to the expense of taxation. 15.Unfortunately the request for gross sum costs generated a considerable amount of correspondence between the parties as to the entitlement, subsequent to the hearing, to request gross sum costs, and the amount involved. 16.I have reviewed the schedule provided by the solicitors for QuestNet as to the costs incurred. I fix gross sum costs at $20,000.
Mr Jose-Antonio Maurellet, instructed by Messrs Barlow Lyde & Gilbert, for the Plaintiff Mr Richard Healy, of Messrs Oldham Li & Nie, for the 1st Defendant |
Cases cited in this judgment
Further hearings and rulings under HCA 1475/2006