Champion Concord Ltd and Another v. Lau Koon Foo and Another

HCMP 2083/2010 AND HCMP 2084 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2083 OF 2010

(ON AN INTENDED APPEAL FROM HCCL NO. 1 OF 2010)

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BETWEEN

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2084 OF 2010

(ON AN INTENDED APPEAL FROM HCCL NO. 5 OF 2010)

BETWEEN

(Head Together)

Before: Hon Rogers VP in Chambers

Date of Hearing: 29 October 2010

Date of Decision: 29 October 2010

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1.This is an application for leave to appeal out of time in respect of two cases. They both involve the purchase of a house in the New Territories. In one case, the purchaser issued Order 86 proceedings and, in the other, there were mirror proceedings, to put it that way: the vendor issued Order 86 proceedings. The vendor succeeded in the court below and judgment was given on 22 June. Immediately thereafter, the purchasers gave notice that they wished to appeal. They sought a stay; that was granted by agreement and they applied for leave to appeal.

2.At least in respect of some of the matters which were to be the subject of appeal, they did not need leave.  Mr Ng has drawn both this court and the court below’s attention to the new procedures under the Civil Justice Reform which are embodied in Order 59 rule 21.  They make that clear.  I am not sure that the purchasers need leave to appeal in any of the matters but, leaving that aside, the matter was then set down before the judge and came before him last week.  He gave leave in respect of some of the matters but left it to this court to decide whether an extension should be granted.

3.Quite simply, although Mr Ng wished to argue the question of the merits of the appeal, a strong indication was given that it would be unlikely that anything would be said today about merits for two reasons.  First of all, it is undesirable on an application for extension of time or for leave to appeal, or matters of that nature, that too much is said about the merits because that, it is said, might influence what happens thereafter and, for other reasons, as I indicated in the course of argument, I felt it would be inappropriate for me to say anything.

4.In this case, it seems to me quite clear that the purchasers were seeking to appeal and, in reality, whether or not the procedure was wrong and they expressed it in terms of applying for leave to appeal instead of simply putting in a notice of appeal, really makes very little difference.  A little bit of time may have been lost by it and I am quite sure extra costs have been lost by it but that is about all.  The merit of the matter is that they sought to appeal straightaway and that should not prejudice their rights in some things where, now, the rules provide that they have an automatic right of appeal.

5.I therefore make the orders for extension of time which are sought today.

Mr Gerard McCoy SC instructed by Messrs Blank Rome, for the 1st and 2nd Plaintiffs in HCMP2083/2010 and the 1st and 2nd Defendants in HCMP2084/2010/Applicants

Mr Lawrence Ng, instructed by Messrs Leung, Tam & Wong, for the 1st Defendant in HCMP2083/2010 and the Plaintiff in HCMP2084/2010/Respondent