Sun Jiangrong v. Sun Shaohua and Another

HCMP 2598/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2598 OF 2011

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BETWEEN

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Before: Hon Cheung CJHC and Tang VP in Court

Date of Hearing: 6 July 2012

Date of Judgment: 6 July 2012

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JUDGMENT

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Hon Cheung CJHC:

1.The 1^st respondent seeks leave, insofar as leave is required, to appeal from the order of Harris J dated 1 December 2011.

2.By a consent order dated 20 December 2010, the applicant was given 3 days to hold an Extraordinary General Meeting.  The consent order finally disposed of the proceedings under which it was made (HCMP 1526/2010) as well as a set of related proceedings (HCMP 1780/2010).  However, the applicant was one day late in holding the meeting.  He applied before Harris J for a retrospective extension of time for the holding of the meeting.

3.Opposing the application, the 1^st respondent argued that the court did not have jurisdiction to extend time as it had been rendered functus officio by the consent order.  The general power to extend time under O 3, r 5(1) of the Rules of the High Court (Cap 4A) does not apply to a stipulation of time under a final judgment disposing of the entire proceedings in the absence of any express or implied liberty to apply provision, the 1^st respondent argued. Secondly, the 1^st respondent argued that in any event, the consent order represented a true contract between the parties which by its terms excluded the court’s power to extend time.

4.The judge rejected both arguments and extended time.

5.The 1^st respondent repeats the same arguments before this court.

6.First, we take the view that this is an intended interlocutory appeal concerning an order to extend time, even though the time provision is contained in an order disposing finally of the entire proceedings.  Leave to appeal is required.

7.Secondly, we refuse leave to appeal.

8.As to the first argument, we take the view that O 3, r 5(1) is wide enough to cover stipulations as to time contained in final judgments. O 3, r 5 expressly refers to “judgment”, without differentiating between a final judgment and an interlocutory judgment.  The fact that O 45, r 6(1) deals with extensions of time under some overlapping circumstances does not require O 3, r 5(1) to be given a restrictive interpretation, which serves no meaningful purpose.

9.As to the second argument, we agree with the judge’s analysis that the consent order did not embody a true contract.  In any event, even if it did represent a true contract, there is nothing in the order ousting the court’s jurisdiction to extend time.  The order does not say that time is of the essence of the underlying contract and the circumstances do not suggest that to be so.  As a matter of fact, the Extraordinary General Meeting was held one day late without any objection from the 1^st respondent or his legal advisors at the time.

10.The intended appeal is unarguable.  Leave to appeal is therefore refused with costs.

Hon Tang VP:

11.I agree.

Mr Douglas Lam, instructed by Hogan Lovells, for the applicant

Mr Ambrose Ho, SC and Mr Christopher Chain, instructed by Maurice W M Lee, for the 1^st respondent