杭州日月電器股份有限公司 v. The Registrar of Companies and Others

HCMP 2647/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2647OF 2014

(ON AN APPEAL FROM HCMP NO. 653 of 2014)

________________________

________________________

_______________

D E C I S I O N

_______________

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

1.On 30 January 2015, this court refused to grant extension of time to the 3^rd Respondent to appeal against the judgment of Ng J of 12 September 2014. The nature of the judgment below and the circumstances leading to the need for extension of time to appeal are set out in our judgment of 30 January 2015.

2.The 3^rd Respondent issued a Notice of Motion on 17 February 2015 seeking leave to appeal against our decision to the Court of Final Appeal.

3.The registrar gave direction on 27 February 2015 for the disposal of the Notice of Motion on paper unless a party requested for oral hearing before 13 March 2015.

4.The 3^rd Respondent did not make any request for oral hearing until 26 March 2015.  In his affirmation of that date, the 3^rd Respondent explained that he only received the direction of the registrar on 20 March 2015.  The main reason for the delay, according to the 3^rd Respondent, is because he resided in Shanghai and the letter containing the directions was not sent to him by speed post.

5.It should be noted that the letter containing the directions was sent to three addresses of the 3^rd Respondent, one of which was a Hong Kong address.  That Hong Kong address was given by the 3^rd Respondent in his originating summons of 23 October 2014 in the present proceedings seeking leave.  Order 6 Rule 5 (which is applicable to originating summons by reason of Order 7 Rule 3(2)) requires a party who acts in person without a place of residence in Hong Kong to state the address of a place within Hong Kong at or to which documents for him may be delivered or sent.  And that Hong Kong address is the relevant address for service, see Order 6 rule 5(2)(b).

6.Thus, irrespective of whether the 3^rd Respondent could have received the letter of 27 February 2015 in Shanghai before 13 March 2015, the relevant address for notification of the directions was the Hong Kong address.  There is nothing before us to suggest that the letter of 27 February 2015 did not reach the Hong Kong address before 13 March 2015.

7.It is the responsibility of the 3^rd Respondent to ensure documents and letters sent to his Hong Kong address are brought to his attention promptly.  He only has himself to blame for his failure to discharge such responsibility.  As far as the court is concerned, he should have notice of the directions before 13 March 2015.

8.In any event, we do not see any good reason for holding an oral hearing which would only serve to escalate unnecessary costs in a hopeless application.

9.The short point is that the decision of this court in refusing to grant any extension of time is final because it means that no appeal could be brought.  Without any appeal, there is no decision on appeal against which an application could be made for leave to further appeal to the Court of Final Appeal, see Wong Yu Cho Rolly v Ho Chi Sum HCMP 1394 of 2007, 29 July 2008, applying HLF v MTC (2004) 7 HKCFAR 167. 

10.For this simple reason, the Notice of Motion of 17 February 2015 is wholly misconceived. We therefore dismiss it with an order that the 3^rd Respondent shall pay the costs of the Applicant, such costs is fixed by reference to the Statement of Costs of the Applicant at $37,900 after making deductions on items which we regard as excessive.

11.If the 3^rd Respondent wishes to have a Chinese translation of this judgment, he can make an appointment with the clerk of Lam VP to arrange for oral translation of the same by a court interpreter at the court building.

Written submissions by Ms Lorinda Lau, instructed by Simon C W Yung & Co., for the applicant

Written submissions by the 3^rd respondent