Jose Miranda Da Costa Junior and Another v. Lorenzo Yih, also known as Yu Chuan Yih and Others

HCMP 1127/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1127 OF 2014

(ON AN INTENDED APPEAL FROM HCA NO. 156 of 2010)

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(by original action)

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(by counterclaim)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the decision of Deputy High Court Judge Le Pichon on 19 February 2014. By that decision, the learned judge refused to allow the 1st Defendant to file his 5^th Affidavit for the purpose of a hearing on 20 January 2014.  For that hearing, the judge had previously given directions for the filing of evidence on 9 October 2013 and in those directions, apart from a timetable for filing evidence, it was also directed that no further evidence shall be filed without leave.  Thus, without the leave of the judge, the 5^th Affidavit (the summons for leave to use the same was only filed on 15 January 2014, being 3 working days before the hearing of 20 January) could not be used for the purpose of the hearing.

2.This decision is interlocutory in nature.  The 1^st Defendant applied for leave to appeal against that decision.  The judge refused leave on 24 April 2014.  Reasons for her refusal of leave were handed down on 28 April 2014.

3.The judge proceeded with the hearing on 20 January which resulted in her striking out of the defence and entering judgment for the Plaintiff on 19 February 2014.  The 1st Defendant appealed against that judgment in CACV 54 of 2014.  Subject to what we shall say below regarding some of the grounds in the Notice of Appeal, CACV 54 of 2014 shall run its own course and it will be heard on 17 December 2014.

4.The history of the matter was fully set out in the judgment of the judge on 19 February 2014 and her reasons for decision on 28 April 2014.  As far as the decision on the 5^th Affidavit is concerned, it is clearly a case management decision.  This court has said repeatedly that we will not interfere with case management decision unless the lower court has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task, see Li Xiao Yun v China Gas Holdings Ltd HCMP 466 of 2013, 11 March 2013; 厦門新景地集團有限公司v Eton Properties HCMP 13 of 2012, 14 Feb 2012, para 9.     

5.The judge has fully explained in her judgments why she refused to allow the 5^th Affidavit to be admitted for the hearing of 20 January 2014 in the circumstances of the present case.  We do not see any arguable basis for contending that she has gone clearly wrong.  Though the 1^st Defendant dressed up the 5^th Affidavit as a reply to the 9^th Affidavit of the Plaintiff filed on 24 December 2013, we agree with the judge that the matters canvassed in the 5^th Affidavit should have been within the contemplation of the 1^st Defendant as soon as the Plaintiff challenged his compliance with the unless order of master Au Yeung.  We do not accept Mr Nip’s submission that the 1^st Defendant only saw the need to file such evidence after reading the 9^th Affidavit.

6.We also do not discern any errors in principle in the exercise of the discretion by the judge with reference to the underlying objectives in Order 1A Rule 1.  It does not matter whether the case is within the scope of Order 32 Rule 11A (4).  In respect of late application for admission of evidence, the court in the exercise of its case management power must pay regard to timetable already in place and the potential disruption such late application may cause to any substantive hearing.  It cannot be seriously suggested that the judge was not entitled to dismiss the application in the absence of good explanation and exceptional circumstances for such late application.  This was precisely what the judge had in mind when she decided not to admit the evidence at paras 38 and 39 in her judgment of 19 February 2014.

7.Nor should the fact that counsel for the Plaintiff addressed the court in respect of the 5^th Affidavit on a de bene esse basis at the hearing of 20 January provide any basis for disturbing the judge’s decision. Those submissions were made without prejudice to the question as to the admissibility of the 5^th Affidavit.

8.For these reasons we do not think the intended appeal has any reasonable prospect of success.  We refuse to grant leave.

9.We are of the view that the application for leave is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.

10.We also order the 1^st Defendant to pay the costs of the Plaintiff in the present proceedings.  We agree with the Plaintiff that it is a proper case for an award of costs on indemnity basis: hopeless satellite litigation challenging case management decision should be discouraged, particularly when full reasons have been given for refusal of leave at first instance.  We provisionally fix such costs at $60,000.  Parties may put in written submissions (not more than 3 pages) within 7 days if they disagree with that provisional assessment.  In that event, we would deal with those submissions on paper.

11.Lastly, we wish to observe that paragraphs 13 to 16 of the grounds of appeal in the Notice of Appeal in CACV 54 of 2014 should no longer be pursued in view of our decision.  Parties should bring this judgment to the attention of the court hearing that appeal in December 2014.

Ms Elizabeth Cheung, instructed by Reed Smith Richards Butler, for the 1^st plaintiff (by original action)

Mr Norman Nip, instructed by Laracy & Co, for the 1^st defendant (by original action)