Comprehensive Auto Restoration Ltd v. Lee Seng Siew

CACV 159/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 159 OF 2012

(ON APPEAL FROM HCA 960/2011)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.The Court gave judgment on 30 April 2013 dismissing the defendant’s appeal against the judgment of Chung J who affirmed a summary judgment granted in the plaintiff’s favour against the defendant in the sum of $2,317,672. Our reasons for judgment were handed down on 30 May 2013.

2.On 17 December 2013, the defendant applied to us for leave to appeal to the Court of Final Appeal out of time.

3.The parties agreed to deal with the application on paper.

Delay

4.The application was made 6½ months counting from the expiration of the 28 day time limit after judgment.  This is a substantial delay and no explanation was proffered at all for the delay.  For this reason alone the application should be dismissed.

Merits of the application

1)  As of right   

5.The defendant relies on the ‘as of right’ ground.  This is misconceived.  An Order 14 summary judgment is not a final judgment, it does not fulfill the ‘application test’ : Bank of China (Hong Kong) Ltd. v. Twin Profit Ltd and others (2012) 15 HKCFAR 560 per Ribeiro PJ paragraphs 10-11.  The nature of an Order 14 summary judgment would not finally dispose of the relevant issue between the parties, whichever party should succeed.  Had the defendant successfully opposed the application for summary judgment, the matter would still have to be tried.  The situation is different from an Order 14A summary judgment which, depending on the issue of law as framed, a judgment given either way may finally dispose of the matter : see Shell Hong Kong Ltd v. Yeung Wai Man Kiu Yip Co. Ltd and another (2003) 6 HKCFAR 222.

2)  Questions of great general or public importance

6.The defendant identified five questions which need not be repeated here.  The principles regarding Order 14 summary judgment are well established and do not require restatement.  The first four questions are meaningless without the proper factual foundation to show why such well-known principles should be revisited. The last question is fact specific pertinent only to the facts of this case. 

7.In our view no question of great general or public importance is engaged in this case.

Conclusion

8.The application is refused with costs to the plaintiff.

Mr Alfred H H Chan, instructed by Edmund Cheung & Co., for the plaintiff

Mr Kim Min Ju, instructed by S. H. Chan & Co., for the defendant