Mark Wiemer v. Hang Seng Bank Ltd

CACV 222/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 222 OF 2011

(ON APPEAL FROM HCSD 6 of 2010)

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BETWEEN

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Before: Hon Fok and Lunn JJA in Court

Date of Hearing: 27 July 2012

Date of Judgment : 6 August 2012

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the Court):

1.The appellant, Mr Mark Wiemer, acts in person. This is his appeal by a summons filed on 4 June 2012 against the Order of Kwan JA of 27 April 2012, by which it was ordered, inter alia, that within 28 days the appellant give security for the respondent’s costs of the appeal by payment into court of the sum of $90,000 and that, in default of payment, the appeal stand dismissed without further order. Having heard the parties, we reserved judgment, which we deliver now.

2.At the outset of the hearing, it was established that although the respondent had caused a copy of its Skeleton submissions and authorities to be served on the applicant’s correspondence address in the afternoon of 20 July 2012, the appellant had not received those documents.  As a result, those documents were provided to the appellant and the hearing was adjourned until later in the morning.  At the resumed hearing, the appellant indicated that he was in a position to proceed.

3.The circumstances leading to the respondent’s application for security for costs of the appellant’s appeal from Barma J’s Order of 21 September 2011, dismissing his application to set aside a statutory demand and authorising the presentation of a bankruptcy petition against the appellant, are set out in the judgment of Kwan JA of 27 April 2012.  She noted that the appellant (paragraph 2):

“ …applied to set aside a statutory demand served on him by the Hang Seng Bank Limited for over $9 million. The debt demanded was a judgment debt obtained by the bank against the borrower company (of which Mr Wiemar is a shareholder and director) and Mr Wiemer as the surety. The application to set aside the demand was made on the ground that he has a bona fide cross claim against the bank damages for negligence that is sufficient to extinguish the judgment debt. It is alleged that the bank was negligent and in breach of its duties as mortgagee in exercising its right to sell the mortgaged property and had sold the property at a gross undervalue.”

4.The judge noted that, in his Notice of Appeal and in an affidavit filed in the proceedings before her, the appellant sought to rely on new evidence, namely a valuation report compiled by CBRE Richard Ellis of the value of the property at the time it was sold by the respondent.  Of the appellant’s position in respect of that new evidence the judge observed, “… he said he would not disclose it at this time.”  The appellant has adopted the same position before this Court.  In any event, as Kwan JA noted, the appellant had adduced a valuation report before Barma J.  Having found the appellant to be impecunious, the judge expressed “considerable reservations” that the appellant could satisfy the requisite conditions before new evidence could be adduced (Ladd v Marshall) and determined of the merits of the appellant’s appeal, “I do not think his appeal has a sufficiently good chance of success to justify exposing the bank to the injustice of being unable to enforce against him any adverse costs order if his appeal fails.”

5.Order 59 rule 14(12) of the Rules of the High Court provides that an appeal to the Court of Appeal from any determination by a single judge is to be brought by way of a fresh application made within 10 days of the determination appealed against.  It follows that the appeal was not filed within the permitted period.  Rather, the appellant was four weeks out of time in making his application.  In the interim, the appellant having failed to comply with the “Unless” order, the respondent acted on its terms.  On 30 May 2012 the respondent filed a certificate as to default of payment of security for costs and on 1 June 2012 presented a petition to bankrupt the appellant.  The hearing of the petition has been fixed for 8 August 2012.

6.In the face of enquiries from the court as to the delay in filing the summons out of time on 4 June 2012, in breach of the rules, the appellant says simply that he was unaware of the rules.  He had overlooked the matter and had not taken legal advice.  Nevertheless, he accepted that he was aware of the terms of Kwan JA’s order, in particular that, in consequence of his failure to comply with the order to make payment of $90,000 by way of security for the respondent’s costs of the appellant’s appeal from the order of Barma J sanctions were operative, namely upon the respondent’s certifying such default the appeal stood dismissed.

7.Clearly, the appellant is a defaulter under the “Unless” order made by Kwan JA and the stipulated sanctions became operative.  He has not sought relief under Order 2 rule 4, let alone in the prescribed period of 14 days.  It is for him to show good reason for the grant of an indulgence to him by the court.  He has shown none.  It is to be noted that, in the judgment of this Court delivered by Cons VP in The owners of cargo lately laden on board the ship or vessel “Adhiguna Meranti” v The owners of the ships or vessels “Adhiguna Harapan” & Others [1988] 1 HKLR 410, the observation of Lord Guest in the Privy Council in Ratnam v Cumarasamy [1965] 1WLR 8 was cited with approval, namely that “an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation” should not be given.  In the former case, after having been granted a series of extensions of time, the appellants were granted leave to appeal to the Privy Council on two conditions.  They had failed to comply with one of the conditions, namely the preparation and dispatch of the record.  Yang VP refused to extend the time for dispatch of the record.  Having found that the appellants had failed to give the court an acceptable explanation for their delay in complying with the condition, Cons VP said, with reference to the words of Lord Guest, “In our view a timetable provided by the court, as it was in this particular instance is equally important.”

8.In any event, this Court is being asked to review the exercise of discretion by Kwan JA.  Of those circumstances, in the judgment of this court in Mok Pak Keung v Wong Ip Ming CACV 78/2000 (unreported; 8 September 2000) Rogers Acting CJ HC said:

“ ... the Court of Appeal will not interfere with the exercise of discretion unless it is satisfied that the judge had applied wrong principles of law or had given wholly erroneous weight to some matters or failed to take into account some other matters or indeed if the judgment was plainly wrong.”

We are satisfied that none of those circumstances applies in the instant case.

Conclusion

9.For the reasons we have given, the appeal is dismissed with costs to the respondent, to be taxed if not agreed.

Mr Paul H. M. Leung, instructed by Li, Kwok & Law, for the respondent

The appellant (applicant) appeared in person