Au Cheuk Wei Wilson v. Hang Seng Bank (Trustee) Ltd and Others

CACV 213/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 213 OF 2011

(ON APPEAL FROM HCMP NO. 2408 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.There are essentially 2 matters before us: (1) the plaintiff’s application out of time for leave to appeal to the Court of Final Appeal from our judgment given on 14 December 2012 dismissing his appeal from an order of Chung J and (2) an application made by summons by the 2^nd and 3^rd defendants for security for costs should leave be granted.  The 5^th defendant has not issued a summons but has asked for security in his counsel’s skeleton submissions.

2.The judge had dismissed the plaintiff’s Originating Summons for an order that the 1^st defendant, the administrator pendente lite of the estate of the plaintiff’s grandfather, pay him a part of the estate’s net income or a lump sum for his advancement, pending the determination of two probate actions (HCAP7/2010 and HCAP9/2010).

3.Our Reasons for Judgment (the body of which comprised 8 pages) were handed down on 7 January 2013.  The deadline for an application for leave to appeal to the CFA expired on 11 January 2013.

4.On 23 January 2013 the plaintiff took out a notice of motion for leave to appeal out of time. 

5.In an affidavit filed on 14 March 2013 the plaintiff explained that the 4-day period between the handing down of the Reasons for Judgment and the deadline for lodging an application for leave to appeal was too short for him to make an informed decision on whether to lodge the application given the potential costs liabilities, as he had no assets, a modest income of less than $14,000 a month and current liabilities of some $2m.

6.The application for leave is made under s.22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap. 484, and the question that the plaintiff says ought to be submitted to the Court of Final Appeal for decision by reason of its great general or public importance is as follows:

“Does the Court of First Instance of the High Court of Hong Kong have the jurisdiction to direct an Administrator Pending Suit, appointed by the Court itself under Section 40 of the Probate and Administration Ordinance (Cap 10), to pay ‘advancement’ to a beneficiary (ascertained, potential or contingent) and if so, when and how should such jurisdiction be exercised?”

7.First as far as the extension of time is concerned, it seems to us that as our Reasons for Judgment were relatively short and as the plaintiff has throughout been advised by the same team of lawyers, it would not have required much time for him to decide whether or not to lodge an application for leave to appeal.  However we accept that the plaintiff had other important considerations given his financial position.  In the individual circumstances of this case, if we had considered the appeal to be reasonably arguable, we may well have exercised our discretion to grant an extension of time as the respondents have not suffered any prejudice by the delay.

8.However we do not consider the appeal to be reasonably arguable.  The plaintiff has not proffered any new arguments, nor has he identified how we have erred in the judgment.

9.In the circumstances we decline to grant leave out of time.  It is not necessary for us to deal with the summons for security for costs.  We will now hear the parties’ submissions as to costs.

[After hearing arguments on costs]

10.We would order that (1) the costs of the application for leave to appeal out of time be paid by the plaintiff to the defendants, with costs to the 1^st defendant to be on a trustee basis and to the other defendants on a party and party basis, to be taxed if not agreed; and (2) the costs of the summons for security be paid by the plaintiff to the 2^nd and 3^rd defendants on a party and party basis, to be taxed if not agreed.  

Mr Kenneth Lam instructed by Simon Chan & Co., for the Plaintiff/Appellant

Mr Vincent Lung, instructed by Mayer Brown JSM, for the 1^st Defendant/1^st Respondent

Mr Kevin Li, instructed by Y. T. Tong & Co., for the 2^nd & 3^rd Defendants/2^nd & 3^rd Respondents

Ms Au Lan Wai, 4^th Defendant/4^th Respondent, in person, absent

Ms Belinda Ma, instructed by CC Partners, for the 5^th Defendant/5^th Respondent