Lam Wong Kwan Ying and Another v. Lam Sik Se, Tony

HCA 1885/1987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1885 OF 1987

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D E C I S I O N

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1.I am not satisfied that the 2^nd plaintiff’s intended appeal has reasonable prospects of success. The cases referred to and relied upon by the 2^nd plaintiff in support of the argument that the terms in the Schedule to a Tomlin Order should be enforced, irrespective of any delay, are distinguishable. The observations made by the court in these cases deal with variation of the terms in the schedule. In paragraphs 11 to 13 of my Decision handed down on 21 October 2013, I made it clear that inordinate delay was considered in the context of an application to the court under the “liberty to apply” provision of the Tomlin Order itself to seek compliance with the terms of the Schedule, and that the finality of a Tomlin Order, and its “liberty to apply” provision, is important. These considerations are separate to the question of the applicability of any limitation period.

2.Since the CJR, delay has been regarded as sufficient prejudice.  Arguments that the defendant has not sustained any prejudice as a result of the plaintiff’s delay are unsustainable.

3.The application for leave to appeal is accordingly dismissed, with costs.

Mr Kenneth C L Chan and Ms Annie Lai, instructed by Fan Wong & Tso, for the 2^nd plaintiff

Mr Alan C Y Yung, instructed by Hastings & Co, for the defendant