Read the full judgment text of HCMP 002535/2007 on BabelCite. This High Court CFI judgment was delivered on 4 June 2008 before 楊振權, 林文瀚.
Civil procedure – appeal – leave to appeal – whether new grounds not raised at trial may be raised on appeal – whether trial court required to consider issues sua sponte where litigant is unrepresented – natural justice – sub-contract terminated due to default in mortgage instalments – plaintiff paid off defendant's loan to Po Sang Bank and sued to recover HK$156,509.21 – whether defendant may raise new ground concerning plaintiff's handling of mortgaged property on appeal – whether the exception in Flywin Company Limited v Strong & Associate Limited [2002] 2 HKLRD 485 applies – court holds that the new grounds do not satisfy the Flywin exception, as the relevant facts were not before the trial court and Chinese law expert evidence would be required to determine the rights and obligations concerning the mortgaged property in Mainland China – whether trial judge erred by not considering mortgage property issues where defendant was unrepresented – court holds that civil litigation is a matter for the parties, and the court is not required to raise issues on behalf of a party who has not sought to raise them, following Scarman J in In the estate of Fuld (Deceased) [1965] 2 All ER 653 – the principle applies equally where a party is unrepresented – whether the defendant has any arguable ground of appeal – court holds that the defendant has no arguable ground of appeal – leave to appeal dismissed – HCMP 2535/2007 dismissed
Legal issues: Whether new grounds not raised at trial may be raised on appeal · Whether the court should raise issues sua sponte in a self-represented litigant's case under natural justice · Whether the defendant had an arguable ground of appeal
Outcome: Leave to appeal dismissed; the defendant's application for leave to appeal is refused.
Cited by 2 cases