Wallbanck Brothers Securities (Hong Kong) Ltd v. Emily Tse and Others

DCCJ2422/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2422 OF 2013

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DECISION

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1.This is the plaintiff’s application for leave to appeal to the Court of Appeal for a decision which I handed down on 31 March 2015.

BACKGROUND

2.The proposed grounds of appeal appear in a document called “Application for leave to appeal Grounds of Appeal”.  In it, the plaintiff seeks leave to appeal against (1) the decision in the striking-out application; and (2) the costs order.  Under the proposed grounds of appeal, the plaintiff has basically repeated the arguments appeared in the amended statement of claim and the submissions put forward by its solicitor in the March 2015 hearing.  On top of that, the plaintiff relies on the additional grounds of so-called “similar facts evidence” and the inherent and apparent bias of this court.

3.For the reasons stated in the decision, I ordered the amended statement of claim to be struck out on grounds that it amounted to an abuse of process and the same being frivolous and vexatious. 

DISCUSSION

4.The principles on leave to appeal to the Court of Appeal have been succinctly summarised by Fok JA (as he then was) in Wing Tat Haberdashery Co Ltd v Elegance Development and Industrial Co Ltd [2011] 5 HKC 474 at §7:-

(1) According to section 63A of the District Court Ordinance, Cap 336, which was introduced as part of the Civil Justice Reform, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

(2) The test whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, namely whether the applicant for leave can show that he has an arguable case with reasonable chance of success on appeal: see per Leong JA in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359 at §5.

(3) The test corresponds with the relevant leave test in section 14AA(4) of the High Court Ordinance, Cap 4 for the grant of leave from a decision of the Court of First Instance to the Court of Appeal in interlocutory matters: see SMSE v KL [2009] 4 HKLRD 125.

Merits of the application

5.In my view, in the proposed grounds of appeal, the plaintiff has simply repeated its arguments presented to the court during the striking-out hearing and has not added anything new in substance.  As I had already considered those arguments in my decision dated 31 March 2015 and concluded that they do not contain any real substance, I fail to see how such repeated grounds would enable the plaintiff to say it has any reasonable chance of success on appeal.

6.Further, I agree with Mr Abraham Chan, counsel for the defendants, that the rambling and generally incomprehensible nature of the document reflects the critical problems with the plaintiff’s claim, ie the lack of any discernible cause of action; its abuse nature (both procedural and substantive) and its frivolity and vexatiousness. The plaintiff’s skeleton submission and the 2 addendums to the grounds of appeal filed subsequent to the application do not in my view add any further substance to the plaintiff’s proposed grounds of appeal.

7.I therefore would dismiss the plaintiff’s application in so far as they are related to the grounds purportedly relied on by the plaintiff in its proposed grounds of appeal and its 2 addendums.

8.In relation to the grounds of the so-called “similar facts evidence” and apparent and inherent bias of this court, I consider that they also contain no real substance and with no reasonable prospect of success.  I would likewise dismiss the plaintiff’s application based on those grounds.

9.I would therefore refuse the plaintiff's application based on the grounds of merits.

Interests of justice

10.Given the reasons of why the plaintiff’s original amended statement of claim was struck out and in view of the way the plaintiff had conducted the present proceedings, I do not see any reason why it would be in the interests of justice for this matter to proceed further to the Court of Appeal. Therefore, I would also refuse the application for leave based on this ground.

Residual discretion

11.I am aware that even if a proposed appeal has reasonable prospect of success, the court still has a residual discretion to refuse leave having regard to the overall circumstances including the interests of justice: Ho Yuen Ki Winnie v Ho Hung Sun Stanley HCA 391/2006, 25 May 2009 at §3 (A Cheung J as he then was).  In this case, I would refuse the application for leave in the exercise of the court’s residual discretion in any event.

Costs appeal

12.In view of the conduct of the plaintiff in this case, I considered that an appropriate costs order was for the plaintiff to pay the defendants’ costs of the action, including the costs of the 2 summonses dated 20 February 2014 and 10 March 2015, on an indemnity basis, such costs to be summarily assessed.  That was the order I made in regard to costs in this case.

13.It has been stated by the Court of Appeal in Choy Yee Chun (The Representative of the estate of Chan Pui Yiu) v Bond Star Development Ltd [1997] HKLRD 1327 that a taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s costs on an indemnity basis: see §62/App/12 of The Hong Kong Civil Procedure 2015.

14.Given the history of the case and the way the plaintiff had conducted itself throughout the proceedings, I consider that this case fitted into the above description and the costs order made was a proper one in the circumstances. 

15.As the plaintiff has failed to make any application to vary the costs order nisi within the 14 days time frame as directed under my decision, the order nisi has become absolute after the expiry of the specified time. 

16.I therefore cannot see any merits at all in the plaintiff’s proposed appeal on the costs order which after all involves an exercise of the court’s discretion.

Stay of proceedings

17.By a separate summons, the plaintiff tries to apply for a stay of proceedings pending appeal.

18.The plaintiff has not stated the grounds for applying a stay of the proceedings.

19.As I found that there was no substance in the plaintiff’s proposed grounds of appeal, I see no basis for ordering a stay of proceedings pending appeal in this case.  I therefore would dismiss the plaintiff’s summons for stay with costs.

CONCLUSION

20.In conclusion, I would dismiss the plaintiff’s application for leave to appeal with costs, to be taxed on a party and party basis, with certificate for counsel.

21.I would also dismiss the plaintiff’s application for a stay of proceedings pending appeal with costs in favour of the defendants, on a party and party basis, with certificate for counsel.

22.The costs of today’s two summonses have been summarily assessed by me at HK$133,000.

Mr Phil Chan, of Philips, for the plaintiff

Mr Abraham Chan, instructed by Clifford Chance, for the 1^st, 2^nd & 3^rd defendants