Case Document

100%Judiciary

CACV 47/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 47 OF 2013

(ON APPEAL FROM HCA NO 850 OF 2009)

------------------------

BETWEEN
	MAK YUK KING	Plaintiff
and
	THE PERSONAL REPRESENTATIVES OF	Defendant
	WONG WAH WAI, DECEASED
	(By Original Writ)
AND BETWEEN
	MAK YUK KING	Plaintiff
and
	WONG TAK SENG	Defendant
	REPRESENTING THE ESTATE OF
	WONG WAH WAI, DECEASED
	(By Original Writ and Order to carry on dated 11 June 2009)
------------------------

Before: Hon Yuen JA in Chambers

Dates of Hearing: 30 May 2013 and 8 August 2013

Date of Decision: 8 August 2013

--------------------------

DECISION

--------------------------

1.In HCA850/2009, Madam Mak Yuk-king (“Madam Mak”) claimed to be entitled to 3 assets in the sole name of Wong Wah Wai (“the deceased”) as against the deceased’s son Wong Tak Seng (“Mr Wong”). The causes of action were common intention constructive trust and in relation to one asset, a flat, donatio mortis causa.

Deputy Judge Burrell’s judgment

2.The action was tried before Deputy Judge Burrell. Both parties were then legally represented.

3.On 19 February 2013 the learned judge found in favour of Madam Mak. It is not necessary for present purposes to discuss the judgment save to record that the learned judge found that Madam Mak was entitled to :

- the flat in its entirety by reason of donatio mortis causa,

- the remaining balance in the bank account,

- 50% of the shares, with the remaining 50% going to Mr Wong.

Mr Wong’s appeal

4.On 12 March 2013 Mr Wong, acting in person, filed a Notice of Appeal. It is not necessary for present purposes to discuss the grounds.

5.On the same day 12 March 2013 the Notice of Appeal was served on Madam Mak’s solicitors.

Mr Wong’s application for legal aid

6.1 On 25 April 2013 Mr Wong applied for legal aid. However he made his application using the lower court title, and apparently without having informed the legal aid authorities that he had already started the appeal proceedings on 12 March 2013.

6.2 Accordingly the memorandum of notification of an application for legal aid was only filed in the lower court and never made its way to the appeal proceedings file.

6.3 At the hearing before me on 30 May 2013 Mr Wong was informed that he should rectify matters by informing the legal aid authorities to amend the memorandum to refer to the appeal proceedings.

6.4 Be that as it may, the effect of s.15 Legal Aid Ordinance Cap.91 is that upon there being an application for legal aid, there is an automatic stay of all steps in the proceedings for 42 days, ie from 25 April 2013 to 6 June 2013, unless the court otherwise orders.

Application for extension of time for filing respondent’s notice

7.1 Meanwhile on 29 April 2013 Madam Mak’s solicitors filed a summons for an extension of time to file a Respondent’s Notice to affirm the decision on additional grounds. Order 59 rule 6(3)(b) RHC provides that a respondent’s notice should be served within 21 days after service of the Notice of Appeal. Since the Notice of Appeal was served on 12 March 2013, the deadline for serving the respondent’s notice fell on 2 April 2013.

7.2 In a supporting affirmation, the current solicitor in charge of the case deposed that the Notice of Appeal had been served on his firm on the very day that the solicitor who had been handling the case resigned, and the Notice of Appeal was not brought to the attention of other members of the firm. It was not until the firm received a letter on 8 April 2013 from the Court containing directions for the appeal bundle that the matter came to light at the firm. Counsel was instructed, a conference was set up on 17 April 2013 and a draft Respondent’s Notice was prepared on 26 April 2013.

7.3 As mentioned earlier, a summons for extension of time was issued on 29 April 2013 which was fixed before me on 30 May 2013.

The position on 30 May 2013

8.As there was no application to lift the stay before this matter came before me on 30 May 2013, I adjourned the matter to a day after 6 June 2013 to enable Mr Wong to see if legal aid would be made available to him. A memorandum of his application for legal aid was filed on 7 June 2013.

The position now

9.1. As at 8 August 2013 (after the expiry of the 42-day automatic stay), no decision has apparently been made on Mr Wong’s application for legal aid.

9.2 Directions were given by Master Leong for the filing of affirmations or submissions.

9.3 Mr Wong opposed Madam Mak’s summons for extension of time setting out 5 grounds in a document dated 25 June 2013.

Discussion

10.1 In my view there really is no excuse for Madam Mak’s solicitors missing the notice of appeal served at their office on 12 March 2013. Although the handling solicitor left the firm that day, a professionally-run firm should have a proper handover of files and someone to supervise the delivery of incoming documents to relevant personnel.

10.2 Moreover, even after the receipt of the Court’s letter dated 8 April 2013 referring to the appeal, there was no sense of urgency at all even though the deadline for filing a respondent’s notice had already expired nearly a week earlier (on 2 April 2013).

10.3 The notice of appeal was extremely simple and even if a conference with counsel was deemed necessary, it should not have taken 18 days for the respondent’s notice to be prepared. The respondent’s notice itself is also extremely simple.

10.4 All in all, for the solicitors to have taken 3 weeks (8 April to 29 April) to issue a summons for extension of time, when by their own fault they had neglected its service, was completely unreasonable.

10.5 If the respondent’s notice had been to vary the order or to lodge a cross-appeal, I would have had no hesitation in refusing an extension, even without any prejudice suffered by Mr Wong.

10.6 However, it is only a respondent’s notice to affirm and Mr Wong’s document dated 25 June 2013 only set out arguments in support of his appeal and does not indicate that he has suffered any prejudice by the delay. Further, no delay in the fixing of the hearing of the appeal has been caused.

10.7 Accordingly I would reluctantly grant the extension having obtained an undertaking from the solicitors that they would personally bear Mr Wong’s costs of the application as well as not charge their own client Madam Mak.

Order

11.For the reasons set out above, I made the following order:

“Upon the undertaking of Messrs Joseph Leung & Associates to personally pay the defendant Wong Tak Seng the sum of $1,400 as summarily assessed costs and not to charge their own client Mak Yuk King the costs of and incidental to the application for extension of time including the costs of instructing counsel to appear at the hearings of the said application, order in terms of para. 1 of the summons dated 29 April 2013”.