Collier Petty Ltd v. Wong Ching

M.P. No. 1056 of 1987

IN THE COURT OF APPEAL

(ON APPEAL FROM DISTRICT COURT OF

HONG KONG ACTION NO. 982 OF 1987)

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BETWEEN

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Coram: Hon. Silke, V.-P., Hunter. J.A.

Date of hearing : 2nd October 1987

Date of delivery of judgment : 2nd October 1987

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JUDGMENT

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Hunter. J .A.

1. On the 21st April this year, Deputy Judge Crawshaw acceded to an application of the plaintiff that the defence filed by the defendant in person disclosed no reasonable defence, was frivolous, vexatious and an abuse of the process of the court. He accordingly struck out the defence and gave judgment for the plaintiff for the sums claimed together with indemnity costs. We have been told today that Judge Crawshaw was invited to review his decision and on 20th May, declined to alter it in any way.

2. From that decision, the defendant, acting in person, applied before Power, J.A. sitting as a single judge for leave to appeal. She conducted the appeal in person. Power J.A.'s reasons show that she advanced five grounds before him, all of which he considered in detail and rejected. That was on 26th June. Nothing then happened until the 7th August when this notice of motion was taken out, asking first for leave to appeal out of time under section 35(3) of the Supreme Court Ordinance to appeal the decision of a single judge to the full court of appeal.

3. The application assumed, in my view, correctly, that the time limit for this purpose was seven days. This, I think, emerges from O.59 r.14(3) which is in these terms :

"Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within seven days after the date of the refusal."

4. For the purposes of this application, "the court below" is the court whose decision we are being invited to review or interfere with and that is Power J.A.. So I think it follows, as the applicant herself recognised in an affirmation she affirmed, that the proper time for appealing Power, J.A.'s decision was seven days. The first question which arises is whether or not good reason has been shown for extending that period of time.

5. The first reason advanced by the lady in her affirmation was that the judge was sympathatic to her claim but dismissed it because she did not produce the proper authorities before him. There is plainly neither substance nor truth in that assertion from a reading of Power, J.A.'s reasons. Secondly, she says that her health was in a poor state towards the end of June and a large part of July. She was well enough to make a 12-page affirmation on 24th June and to conduce her application on 26th June. It is now being suggested that immediately after that she became ill. There is no evidence put before the Court in support of that assertion at all. Finally, it is said that she was unaware that seven days was the fixed time. That may be true, but ignorance of the law in this respect is no privilege. She was well aware, being an experienced litigant in the District Court that the District Court Ordinance itself laid down a 14 days time limit for leave to appeal. She must have recognised that a very short time only would be allowed by this Court for moving from a single judge who declined leave to the full court.

6. Finally, we have considered the grounds of appeal which she wishes now to argue. It is a striking commentary on those that not a single word of criticism is directed at the detailed reasons given by Power, J.A. for refusing leave. The points that she now wishes to argue are apparently new points. They are not points which impress us as having any weight or substance. In those circumstances, in our judgment, this application for an extension of time must he refused. Therefore, the whole application fails and is dismissed.

7. Application has now been made by the plaintiffs for costs on an indemnity basis which was the Order made by Deputy Judge Crawshaw in the Court below. The basis of the application, and we apprehend of the Judge's Order, is that this is part and partial of a long campaign being waged between the defendant and the other Co-owners in this particular building, who have so far succeeded in having the management committee, which was then controlled by this defendant, displaced and Collier Petty put in to run the building. Every obstacle to the efficient running of the building has been raised by, what seems to be, a series of actions and defences raised by this lady. A number of these are apparently due to come before other divisions of this court in the immediate future. We can see no reason why either Collier Patty or the Co-owners should be required to hear any of today’s costs which were totally wasted.

Michael Wong (M/s Fred Ken & Co.) for Applicant.

N. Pirie (M/s Richard Bryson & Co.) for Respondent.