CHINA WEAL LTD. v. LAM SAU WAH

CACV 187/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 187 OF 2000

(ON APPEAL FROM HCA NO. 12281 OF 1997)

____________

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

Introduction

1. In 1992, the Defendant bought a flat in Tai Koo Shing. The Plaintiff claims that the Defendant holds the flat on trust for it. The Defendant denies that. Accordingly, the Plaintiff brought proceedings in the Court of First Instance seeking a declaration that the flat was being held by the Defendant for the Plaintiff on a resulting trust. The action was heard Deputy Judge Woolley. By a judgment handed down on 18 April 2000, he dismissed the Plaintiff's claim.

2. The Plaintiff wished to appeal to the Court of Appeal. The judgment was sealed on 5 May, which happened to be the date on which the amendment to Ord. 59 r. 4(1)(c) took effect, whereby the time for serving a notice of appeal to the Court of Appeal was reduced from six weeks to 28 days. The Plaintiff's solicitors served the notice of appeal on the Defendant on 29 May, i.e. within the new time limit. The Defendant is now applying for the notice of appeal to be struck out "for failure to set down the appeal as required by Ord. 59 r. 5".

The requirements of the Rules

3. The Defendant's application as originally formulated betrays a misunderstanding of what Ord. 59 r. 5 requires an appellant to do once the notice of appeal has been served on the other party. Ord. 59 r. 5 identifies three separate steps. First, Ord. 59 r. 5(1) provides that where, as in the present case, the notice of appeal has been served after the order appealed from has been sealed, the appellant is required, within 7 days of service of the notice of appeal, to lodge with the Registrar two copies of the notice of appeal duly endorsed and a copy of the order appealed from. Secondly, Ord. 59 r. 5(2) provides that, once these documents have been lodged with the Registrar, it is the Registrar who must (a) file the notice of appeal and (b) cause the appeal to be set down. Thirdly, Ord. 59 r. 5(4) provides that, within 4 days of the Registrar causing the appeal to be set down, the appellant must give notice to that effect to all the parties on whom the notice of appeal was served. There is no prescribed form for such a notice. Indeed, the Rules do not require the notice to be in writing. Accordingly, the notice that the Registrar has set down the appeal may be given orally.

4. It will be noted from this summary of the steps to be taken that an appellant cannot be criticised for failing to set down an appeal. It is the Registrar's responsibility to cause an appeal to be set down. What an appellant can be criticised for is either not lodging the relevant documents with the Registrar within the relevant time as required by Ord. 59 r. 5(1), or not notifying the other parties within the relevant time that the appeal has been set down as required by Ord. 59 r. 5(4).

The Plaintiff's compliance with the Rules

5. In these circumstances, the Defendant no longer contends that the Plaintiff failed to set down the appeal. Nor does the Defendant contend that the Plaintiff failed to comply with the requirements of Ord. 59 r. 5(1). In that connection, the Defendant does not dispute that on 30 May the Plaintiff lodged with the Registrar the documents required to be lodged. The only point now taken by the Defendant is that the Plaintiff failed to comply with the requirements of Ord. 59 r. 5(4), in that the Plaintiff failed within 4 days after the appeal had been set down to give notice to the Defendant to that effect.

6. It is not disputed that late on 31 May, the Defendant's solicitors sent a fax to the Plaintiff's solicitors asking if the notice of appeal which had been served on the Defendant's solicitors on 29 May had been filed in court, and if so when. It is common ground that on the following day, David Wan, who was the solicitor with the Defendant's solicitors handling the case, telephoned the Plaintiff's solicitors to get the answer to the query raised in his fax. It is also common ground that he spoke to Emily Ho, who was the solicitor with the Plaintiff's solicitors who was handling the case. It is here that it initially looked as if there might be an unfortunate difference of recollection. Ms Ho claims that she told Mr Wan that the documents had been lodged with the Registry on 30 May, that a number had been assigned to the appeal then, and that the appeal had accordingly been set down. Her version of events is supported by a file note which she prepared at the time. For his part, Mr Wan claims that he merely asked her whether the notice of appeal had been filed, not whether the appeal had been set down, and that Ms Ho had not told him that it had been set down.

7. If their evidence had revealed a genuine difference of recollection between them on a material issue, that difference of recollection could not really have been resolved without Ms Ho and Mr Wan being cross-examined on the contents of their affirmations or affidavits. We do not believe that that is necessary. That is because we do not think that there is a difference of recollection between them on a material issue. What Mr Wan did not say in his affirmation is whether Ms Ho answered his query whether the notice of appeal had been filed. Since the notice of appeal had been lodged two days earlier, and since Ms Ho knew that, it would have been extraordinary if Ms Ho had not confirmed that the notice of appeal had been filed. Thus, even if there had been no conversation as to whether the appeal had been set down, Mr Wan's failure to state in his affirmation what Ms Ho's answer to his query had been is, in our view, tantamount to an admission that she had told him that the notice of appeal had been filed.

8. What, then, is the effect in law of Ms Ho having told Mr Wan that? The answer, in our opinion, is this. In Chan Cheryl v. Ngai Po Lun Paul [1991] 1 HKC 148, the Court of Appeal had to decide when an appeal can be said to have been set down. It referred to the practice in the Registry which was then (and still is) that when the documents required by Ord. 59 r. 5(1) to be lodged are lodged, the appeal is entered in the Register of Appeals, and an appeal number is given. The Court held that it was that entry in the Register which constituted the setting down of the appeal. In the present case, as we have said, Mr Wan has to be treated as having been told that the appropriate documents had been lodged with the Registry on 30 May. Since the consequence of the lodging of those documents would have been the entry of the appeal in the Register, and since that would have constituted the setting down of the appeal, the notice to Mr Wan that the appropriate documents had been lodged with the Registry was tantamount to notice to him that the appeal had been set down on that date. It follows that the Plaintiff did not fail to comply with the requirements of Ord. 59 r. 5(4).

9. Both in his skeleton argument and in the course of his submissions, Mr Kenneth Chan for the Defendant referred to the fact that the Plaintiff's solicitors made no attempt to fix a date for the hearing of the appeal. That may be so, but neither the Rules nor the Practice Direction Relating to Civil Appeals to the Court of Appeal lay down a time limit for the Plaintiff to do that. Perhaps they should. The fact is that they do not. But in any event, it was open to the Defendant to apply for a date for the hearing of the appeal to be fixed if the Defendant wanted to.

Conclusion

10. For these reasons, the Defendant's application to strike out the Plaintiff's notice of appeal must be dismissed.