To Pui Kui v. Ng Oi Che and Others

CACV 67/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2014

(ON APPEAL FROM HCA NO. 522 OF 2008)

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AND

CACV 156/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 156 OF 2014

(ON APPEAL FROM HCA NO. 522 OF 2008)

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(Heard together)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.This is an application for leave to appeal to the Court of Final Appeal.

Background

2.The background of CACV67/2014 and CAV156/2014 has been set out in our Judgment dated 27 February 2015.  For present purposes it suffices to record the following material facts:

(1) in HCA522/2008 (the administratrix’s action against Stephanie Ng, Wing Lung Bank and the family company HEL), the trial judge dismissed the action (“the Judgment”) and made an order that Andrew Ng (“Andrew”) be joined as a party under s.52A(2) High Court Ordinance Cap.4 (“the Costs Liability Decision”) and be jointly and severally liable to pay Stephanie and HEL the costs of the action on an indemnity basis;

(2) in CACV67/2014, the administratrix filed an appeal against the Judgment (it was subsequently dismissed by consent);

(3) in CACV156/2014, Andrew in his capacity as “Party on Costs” filed an appeal from the Costs Liability Decision;

(4) after the administratrix’s appeal was dismissed by consent, Andrew issued a summons under O.15 r.6(2)(b)(ii) Rules of the High Court for an order that he be joined as an “interested party” and be allowed to file a notice of appeal against the Judgment in CACV67/2014.

3.In our Judgment,

(1) we dismissed Andrew’s summons for joinder (see paras. 22-34), but in case we were wrong, we proceeded to consider his intended grounds of appeal in CACV67/2014 and found that we would have dismissed them in any event (paras.35-46);

(2) we dismissed CACV156/2014 (see paras.47-51).

Application for leave to appeal to CFA

4.1.On 27 March 2015, Andrew filed a Notice of Motion in CACV67/2014 and CACV156/2014 respectively for leave to appeal to the Court of Final Appeal.

4.2.Directions were given for written submissions to be provided and for the applications for leave to be dealt with on paper.  Written submissions were subsequently provided by the parties’ respective counsel.

Discussion

5.We have considered the grounds of the applications set out in the Notices of Motion as well as the parties’ written submissions.

6.We are prepared to grant leave only on question 1(a) of the Notice of Motion in CACV67/2014, revised as follows:

“Whether a person who is liable for costs pursuant to an order made under s.52A(2)(b) of the High Court Ordinance (Cap.4) is a person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter for the purposes of O.15, r.6(2)(b) of the Rules of the High Court” (the italicized words complete the quotation of O.15 r.6(2)(b) RHC).

7.As far as the “or otherwise” ground in the joinder issue is concerned, the reference in our Judgment to “entitlement” to joinder is in the context of Andrew’s submission that his liability to pay costs provides him with the substantive legal interest required under O.15 r.6(2)(b): see paras. 24.1 and 31.  The issue was whether such a person could apply to be joined at all (see para.25), not whether the court should exercise its discretion in the circumstances of any particular case to make an order joining him.  We do not consider that leave should be granted for that ground.

8.As for all other grounds, they are case-specific and we do not consider that leave should be granted on either the “great general or public importance” ground or the “or otherwise” ground.

Directions

9.We direct Andrew’s solicitors to prepare the usual order for the proposed respondents’ comments and the court’s approval.

Costs

10.As far as the costs of the applications are concerned, we have considered the gross sum bills submitted by the parties.  We consider it appropriate to order Andrew to pay $45,000 as the costs of the respondents in resisting the unsuccessful parts of his applications.

Written Submission by Mr Nicholas Cooney SC leading Mr Jeffrey Tam, instructed by Damien Shea & Co., for Ng Kwok Tai Andrew, the intended party on costs

Written Submission by Mr Adrian Lai, instructed by S Cheng & Yeung, for the 1st defendant and 3rd defendant