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

DCCJ 2263/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2263 OF 2013

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Before: Deputy District Judge Phillis Loh in Chambers (open to public)

Date of Hearing: 7 October 2014

Date of Decision: 10 October 2014

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DECISION

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1.This is the defendant’s application for leave to appeal to the Court of Appeal against my decision dated 18 June 2014 (“the Decision”) granting leave for the plaintiff to file a fresh statement of claim annexed to the plaintiff’s summons filed on 23 May 2014 (“the fresh SOC”).

2.The defendant’s application was filed on 5 July 2014, 3 days out of time.  It has not taken out an application for leave out of time.  Its director Mr Lau Chun Ming made the application in court and, despite the lack of properly adduced evidence, attempted to explain the reasons for the delay, namely that he had fallen sick on those few days.  I could see no prejudice suffered by the plaintiff as a result of the 3-day delay.  Mr Docherty for the plaintiff confirmed in court that the plaintiff took no issue on this.

3.In these circumstances, I was minded to grant leave for the defendant to proceed out of time and proceeded to hear the defendant’s application for leave to appeal.  As it turns out, the question whether leave out of time should be granted under Order 58 rule 2(10) of the Rules of the District Court has become academic for reasons stated in this decision.

Grounds of appeal

4.In essence, the defendant argues that the Decision was wrong as the court did not have a full picture of the events of this and other related actions (mentioned in paragraphs 36 and 37 of the Decision).  About 20 important documents were allegedly omitted in the hearing bundle.  The omitted documents are now exhibited in the affidavit of Mr Lau Chun Ming filed on 24 September 2014 in support of the defendant’s application for leave to appeal.

5.The defendant also alleged misconduct and default on the part of the plaintiff in conducting these proceedings, designed to oppress the defendant.  It was unfair to the defendant for the court to grant leave for the plaintiff to file the fresh SOC and to proceed the action.

Legal Principle

6.Section 63A(2), District Court Ordinance, Cap 336 states the following:-

“Leave to appeal shall not be granted unless the judge…hearing the application for leave is satisfied that:–

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why  the appeal should be heard.”

Discussion

7.Of the 20 documents allegedly missing from the hearing bundle, 14 of them (E37 to E49; E51) are court orders and decisions, and documents filed by the parties in this action.  They are all in the court files and there is no question that the court did not have a full picture of the case.  The other 6 documents (E50, E52 to E56) are those filed by the parties in other court actions and not relevant to the present proceedings. 

8.As regards the conduct of the plaintiff and default of its solicitors in failing to comply with the unless order, these matters were taken into account by this court in considering whether relief against sanction should be granted as discussed in the Decision.  

9.The defendant rightly pointed out that in paragraph 35 of the Decision, the filing date of the Defence should be 1 August 2013 (not 5 July 2013 which was the date of the Defence); also there was a Supplemental Defence filed on 2 August 2013. Mr Docherty for the plaintiff confirmed in court that there should be no ambiguity regarding the plaintiff’s responsibility to pay costs, and that the plaintiff would bear all wasted costs of the defendant in respect of both the Defence filed on 1 August 2013 and the Supplemental Defence filed on 2 August 2013.

10.The defendant’s arguments do not assist its application for leave to appeal.

11.I am not persuaded that I have erred in points of law or fact in the Decision.  There is no reasonable prospect of success in the proposed appeal, and I do not believe there is any other reason why the appeal should be heard by the Court of Appeal in the interests of justice. There is also no basis for a stay of the action.

Conclusion

12.I therefore dismiss the defendant’s application for leave to appeal.

13.I make an order nisi that costs of this application be to the plaintiff to be taxed if not agreed.  The costs order shall become absolute after 14 days.

Mr Michael John Docherty of Haley & Co, for the plaintiff

The defendant appeared in person