Schindler Lifts (Hong Kong) Ltd v. Nikko Services Ltd

CACV 250/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 250 OF 2010

(ON APPEAL FROM DCCJ NO. 1569 OF 2008)

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BETWEEN

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JUDGMENT

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

1.On 21 November 2013, Lam VP stayed this appeal pending the final determination of a District Court action in which dispute about the enforceability of an agreement settling this appeal is being litigated. For the reasons set out in the Reasons for Judgment and Decision on Costs dated 29 November 2013, Lam VP ordered the Defendant pay the costs of the stay application, such costs were fixed (by way of order nisi) at $28,000.

2.That order nisi was confirmed in the Decision on Gross Sum Assessment of 10 February 2014.

3.The Defendant wrote to seek leave to appeal on 10 February 2014. Lam VP refused leave on 11 February 2014.

4.The Defendant took out a Notice of Motion on 3 July 2014 seeking leave to appeal to the Court of Final Appeal.

5.After some correspondence, parties agreed to have the matter dealt with on papers.  Directions were given on 11 August 2014 for the lodging of submissions.  Both parties have lodged their submissions to the court on 25 August 2014.  There was an omission by the Defendant to serve its submissions, which was rectified on 3 September 2014.

6.After considering the application for leave and the submissions of the parties, we refuse leave and we strike out and dismiss the Notice of Motion of 3 July 2014. First, the proper avenue for appeal against a decision of a single judge of the Court of Appeal is by way of fresh application made within 10 days of the decision to the Court of Appeal, see Order 59 Rule 14(12) of the Rules of the High Court.  It is not open to a party to leapfrog and appeal to the Court of Final Appeal in respect of such decision.

7.Second, the decision of 10 February 2014 is a decision on costs.  No appeal shall lie in respect of such decision without leave, see Section 14(3)(e) of the High Court Ordinance.  Leave had been refused on 11 February 2014.

8.The application for leave to appeal to the Court of Final Appeal is completely misconceived and as such an abuse of the process.  The Defendant, acting by its director Mr Lau, has put forward arguments which were completely ill-focused and did not address the crucial issues as pinpointed above.  In so doing, it has caused substantial costs and court time to be wasted.

9.We make a costs order nisi that the Defendant shall pay the costs of the Notice of Motion to the Plaintiff on indemnity basis, such costs are to be assessed by gross sum assessment according to the following directions:

(a) The Plaintiff shall lodge and serve its skeleton bill within 7 days from the handing down of this judgment; and

(b) The Defendant shall lodge and serve its reply on the quantum as set out in the skeleton bill within 7 days after the service of the Plaintiff’s skeleton bill.  

Written submissions by Haley & Co, for the plaintiff

Defendant: in person, written submissions by its director Lau Chun Ming