Yun Kee Kitchen Ltd v. Luk Kwan and Another

CACV 238/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 238 OF 2008

(ON APPEAL FROM DCCJ NOS. 4904 OF 2006 AND
90 OF 2007 (CONSOLIDATED))

----------------------

BETWEEN

----------------------

(Consolidated pursuant to the Order of Master K.W. Wong
made on the 26^th day of January 2007)

----------------------

Before: Hon Rogers VP and Burrell J in Court

Date of Hearing: 17 December 2008

Date of Judgment: 17 December 2008

------------------------

J U D G M E N T

----------------------

Hon Rogers VP:

1.This is an appeal from a decision of His Honour Judge Lok which was given on 30 July, with the reasons handed down on 7 August.

2.What had happened is that 29th and 30th of July had been set down for the hearing of this case, which was a claim by the Plaintiff in respect of water leakage in premises which it had rented from the Defendants, but at the last minute, or more correctly at the opening of the trial, the Defendants wished to amend their pleadings to plead certain paragraphs or certain clauses out of the tenancy agreement.  That was resisted on the basis that it was a late amendment, and the late amendment would have caused some consternation because the Plaintiff might then have wished to join into the proceedings the solicitors who were acting for the Defendants, who when the tenancy agreement had been signed had been acting for both parties.

3.As the judge pointed out in his reasons handed down on 7 August, that was liable to have caused a considerable delay, probably of a year or so.  The judge exercised his discretion not to allow this late amendment.  He also pointed out, when he had finished hearing the application for the adjournment and then refused it, that he was free the next day and could have heard the case then.  That was resisted because the Defendants wished to consider their own position against the solicitors.  But in the end nothing more transpired from that.

4.The next thing that happened was that on 16 September there was an application for stay.  The case was actually heard at the end of September, on the 18th, 19th, 20th and 23rd of September, with the judgment given on 23 September.  The case was decided on a basis which had originally been in the pleadings but which, in fact, rendered the proposed amendment unnecessary because it did not involve that.  To a large extent the Defendants succeeded because their claim in respect of the rent succeeded even though there was a set-off in respect of the Plaintiff’s claim.

5.That was three months ago.  This appeal was commenced on 20 August.  But after 23 September it was as plain as it could be that there was nothing to be gained by the Defendants should they even succeed on this appeal because the amendment had become totally irrelevant to the whole proceedings.  This morning this was pointed out to Mr Wong, who has appeared on behalf of the Defendants.  The only thing that he can point to that would be of assistance would be that his clients might, if they were successful on this appeal, succeed in relation to costs and may succeed in getting an award of costs in their favour.

6.Certain things have to be borne in mind even in that respect.  The successful party receives its taxed costs which, since they are party and party costs, generally speaking, are not the full costs which a party incurs in bringing those proceedings.  Be that as it may, giving the best estimate that one can, the costs of bringing on this appeal must be a substantial proportion of the amount of claim in the first place.  This court has made it clear on at least two previous occasions that it does not entertain academic appeals, and certainly not appeals which are brought solely for the purposes of costs.

7.Anticipating the point that would be made, Mr Wong has drawn this Court’s attention to the case of Meade v London Borough of Haringey [1979] 2 All ER 1016, where Lord Denning, when dealing with a case in which a school had been closed and the propriety of whether it should have been closed said, at page 123:

“In one sense the appeal had succeeded.  The strike had been called off.  There was no longer any need for an order by the court.  But we proceeded to hear the case for two reasons: one, because the costs of the legal proceedings would depend on whether the parents were justified or not in making their applications; second, because it was of importance to all concerned that the legal position should be ascertained.  In case the same thing should happen again next year.  It is of much importance to parents, and to society at large, to know whether or not the parents can come to the courts when their children are deprived of their education in this way.”

8.That is a very different situation from the present.  First of all, even in relation to costs the Master of the Rolls was there talking about the costs of the whole proceedings, not the costs of an application to amend.  But in the second place he made it very clear that there were matters of considerable public importance involved in that case.  All I can say is that there is no matter of any significance, let alone public importance, involved in whether the judge exercised his discretion correctly in refusing the amendment.  In that respect I can also say that, having read the papers cover to cover, I would have seen little hope in the appeal anyway.

9.For those reasons I consider that this court should decline to proceed further with this appeal.

Hon Burrell J:

10.I completely agree with everything the Vice President has said this morning.  This appeal should have been abandoned in September.

Mr Anthony P W Cheung, instructed by Messrs Leung, Tam & Wong, for the Plaintiff/Respondent

Mr Kenneth Y F Wong, instructed by Messrs Yung, Yu, Yuen & Co., for the Defendants/Appellants