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DCMP 165/2018
[2022] HKDC 270
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO.165 OF 2018
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IN THE MATTER of the High Court of the Hong Kong
Special Administrative Region Civil Action No. HCA13651 of 1999
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And |
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IN THE MATTER of All Those 16/29,953rd parts or shares of and in The Remaining Portion of Tuen Mun Town Lot No.251, Tuen Mun, together with the exclusive use occupation and possession of Flat 8 on 14/F, Block C, Siu Shan Court, No.2/26 Wu Shan Road, Tuen Mun, New Territories, Hong Kong (“the said Property”) |
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And |
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IN THE MATTER of a Charging Order Absolute dated 29th October 2004 in respect of the said Property and registered in the Land Registry (“the said Charging Order”) by Memorial No.16042700550043 |
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And |
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IN THE MATTER of Order 50 Rule 9A and Order 88 Rule 5A of the Rules of the District Court |
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WONG HING |
Plaintiff |
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And |
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NG LEUNG FA |
Defendant |
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Before: Deputy District Judge S.H. Lee (Paper Disposal)
Dates of Written Submissions: 15, 18 & 21 March 2022
Date of Decision: 28 March 2022
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DECISION
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1. The defendant applied by summons filed on 28 February 2022 (the Summons) for leave to file her draft 3rd affirmation attached thereto (the Draft 3rd Affirmation) as “supporting affirmation in relation to her appeal” against the order of a master by way of Notice of Appeal filed on 31 January 2022 (the Notice of Appeal).
2. O.58 r.1(4) (the said Rule) of the Rules of District Court (RDC)[1] was put down in the marginal note of the Summons.
3. In view of general adjournment of proceedings announced by the Judiciary, directions were given for lodging of written submissions for the Summons to be disposed on paper.
Background
4. The plaintiff took out these proceedings in January 2018 by way of originating summons to enforce by way of order for sale a charging order absolute (the COA) he obtained against a landed property in defendant’s name (the Property) almost 14 years ago in October 2004 for judgment sum & interest due from the defendant to him in a High Court action issued in 1999 (the 1999 Action).
5. On 4 February 2021, a master granted the subject order under appeal i.e. an order of sale of the Property with consequential directions (the Order) at a hearing when the defendant was absent. In fact, the defendant had never entered any appearance in person or through lawyer, filed any affidavit nor attended any hearing in these proceedings before the Order was made.
6. The plaintiff thereafter obtained on 1 December 2021 writ of possession to carry the Order into effect.
7. When the plaintiff was about to obtain possession of the Property about a year after the Order was made, the defendant instructed solicitors to file a Notice to Act in these proceedings on 30 December 2021 and subsequently obtained on 27 January 2022 interim execution of the writ of possession pending hearing of defendant’s another summons for stay of execution.
8. On 31 January 2022 i.e. almost a year after the Order was made, the defendant filed the Notice of Appeal to appeal against the Order and served it on the plaintiff (the Appeal).
9. The Appeal is now scheduled to be heard before a judge in chambers on 18 May 2022.
The Notice of Appeal
10. The defendant sought at paragraphs 3 to 5 at pages 5 & 6 of the Notice of Appeal that the Order be varied in 3 ways: (1) certain amounts of principal and interest be not recoverable from sale proceeds of the Property on the ground that “the Plaintiff is time-barred to claim from the Defendant (italics added)”; (2) costs of these proceedings be taxed on “party-to-party basis” and not on indemnity basis as granted; and (3) there be “no order as to costs” for 3 previous hearings in the years 2018 and 2020.
11. In other words, the defendant did not appeal to set aside the Order.It was put down at paragraph 6 of the Notice of Appeal that “the Order do stand except as varied above (italics added)”.
12. Hence, although the Appeal operates as an actual rehearing of the application leading to the Order with the decision of the master not binding on the judge, see paragraph 58/1/2 of volume 1 of Hong Kong Civil Procedure 2022 (HKCP), the rival contentions to be advanced at the hearing of the Appeal is whether the Order ought to stand as the plaintiff obtained below or ought to be varied as contended by the defendant (the Substantive Appeal).
13. In addition to the Substantive Appeal, the defendant made another application at paragraph 1 at page 5 of the Notice of Appeal that that time be extended for the defendant to appeal against the Order (the Time Extension Application).
14. The Time Extension Application was required because the Appeal was out of time. Under O.58 r.1(3), RDC, “unless the Court otherwise orders, the notice [of appeal] must be issued within 14 days after the … order appealed against was … made and must be served within 5 days after issue… (italics supplied)”.
15. The Time Extension Application was made in the Notice of Appeal in line with case law referred below and not separately by way of inter parte summons.
16. An application for extension of time for appealing to a judge in chambers should be made at the same time as the appeal, and the extension asked for in the notice of appeal: see paragraph 58/1/9 of HKCP, citing Chiu Sin-chung v Yu Yan-yan & Another [1993] 1 HKLR 225 at [229].
17. Hence, at the hearing of the Appeal on 18 May 2022, the Time Extension Application and the Substantive Appeal are, in principle, both required to be argued and disposed of, unless disposal of one is conclusive of the other.
The Draft 3rd Affirmation
18. The defendant put down at paragraph 1 thereof: “By this affirmation, I intend to explain the reasons for asking for time be extended for my appeal”.
19. The defendant claimed at paragraph 4 thereof of having moved to the USA in around 2004 and thereafter allowed relatives and friends to stay at the Property until around 27 December 2021.
20. The defendant claimed at paragraph 5 thereof being told by the last occupant of the Property on 21 December 2021 that a Notice to Quit was posted on the Property. She also claimed at paragraph 6 thereof being informed that a second Notice to Quit was posted on the Property warning that it would be broken open on 25 January 2022.
21. At paragraphs 7 & 8 thereof, the defendant claimed thereafter to have instructed solicitors to attend to the matter soon as she “was unaware of the proceedings before”.
22. Regarding the judgment in the 1999 Action, the defendant claimed at paragraphs 9 to 11 thereof not being “aware of the proceedings in 1999” until “around 2017” and never having “received any Court documents”. By way of consequence, the defendant, it was claimed, never filed any notice of intention to defend nor attended any hearing of the 1999 Action.
23. Regarding the COA proceedings, the defendant claimed at paragraph 12 thereof never being informed or aware of the same, and thus never attended any hearing thereof.
24. At paragraph 13 thereof, the defendant asked that time be extended for the Appeal for reasons given by her.
Parties’ Submissions
25. Both parties referred to, and relied on, the said Rule, which reads: “No further evidence (other than evidence as to matters which have occurred after the date on which the … order … was … made) may be received on the hearing of an appeal under this rule except on special grounds (italics supplied)”.
26. The plaintiff submitted that the defendant was adducing fresh evidence for the purpose of the Appeal. The Draft 3rd Affirmation, it was stressed, was “supporting affirmation” for the Appeal on the face of the Summons.
27. It was instead submitted on behalf of the defendant that the defendant intended to adduce the Draft 3rd Affirmation “to depose the reasons for her delay in the Appeal and not otherwise (italics supplied)”[2]. In any event, it was argued on defendant’s behalf that she was not adducing a further round of evidence on appeal as no evidence was adduced by her below at all.
28. The said Rule, the defendant submitted, allowed for fresh evidence to be adduced if it relates to matters that occurred after the order appealed against. The Draft 3rd Affirmation, it is submitted, relates to matters which occurred after the Order and thus it is, and should be, permitted under the said Rule.
29. The plaintiff, however, disagreed with defendant’s submissions above and pointed out that the Draft 3rd Affirmation also contains matters which occurred before the Order and thus it goes beyond the scope of the said Rule.
30. The defendant, nonetheless, submitted that such pre-Order matters are required to be put into the Draft 3rd Affirmation as they are required to explain why the defendant was, as she claimed, not aware of the Order beforehand. It was argued that it should not be viewed as adducing evidence before the date of the Order.
31. For the reasons advanced above, the defendant submitted that the 3 conditions laid down in Ladd v Marshall are not applicable to this case. But the plaintiff argued otherwise.
32. “Special grounds” stated in the said Rule, the plaintiff emphasized, require the 3 conditions laid down in Ladd v Marshall to be satisfied in order for fresh evidence to be adduced. As the Appeal is solely on legal ground of limitation, the contents of the Draft 3rd Affirmation, whether they are accepted or not, the plaintiff submitted, could have no bearing on the result of the Appeal and thus the 2nd condition of Ladd v Marshall has not been satisfied in this case.
33. The defendant agreed that the Appeal is on law except for extension of time. She referred to paragraph 58/1/9 of HKCP, which reads: “In considering whether to extend time to appeal, the Court has to consider all relevant factors, particularly: - … 2. the reasons for the delay…”. The Defendant was, it was argued, only giving reasons for the delay of the Appeal in the Draft 3rd Affirmation and, in view of such commentary of HKCP, such explanation must have a bearing on the result of the Appeal.
34. While agreeing that the court has a discretion to grant extension of time for an appeal having regard to, among others, reasons for the delay, the plaintiff further argued that the Summons should be adjourned to be heard on the date of the hearing of the Appeal so that the Draft 3rd Affirmation could be heard or decided de bene esse together with the Substantive Appeal[3].
35. In reply, the defendant submitted that this Court can, and should, admit the Draft 3rd Affirmation now, leaving the weight, if any, attached to its contents (or the acceptability of the purported explanation offered for the delay) to be argued and decided at the hearing of the Appeal. The plaintiff, it was stressed, suffers no prejudice if the Draft 3rd Affirmation is admitted now.
Discussions
36. Contrary to parties’ common submissions, I do not find the said Rule applicable to the Summons. The said Rule, in my view, sets out to prohibit fresh or further round of evidence adduced for the purpose of the Substantive Appeal save with 2 exceptions i.e. (1) matters which occurs after the order appealed against; and (2) evidence that has special grounds for its admission.
37. The Time Extension Application (and the Summons, if required to be taken out at all) should be based, I think, on O.3 r.5, RDC[4], which rule was also cited at paragraph 58/1/9 of HKCP.
38. In Chiu Sin-chung, supra, at [227] & [228], it was said that “the court’s discretion to extend the time for appealing an order of a master to a judge in chambers under O.3 r.5(1) is unfettered”. But certain principles can be extracted from the case law, including “(i) there must be some material upon which the court can exercise its discretion”, “(ii) the prerequisite of an application to extend time is a clear statement as to the reasons for the time limits not having been observed and for any delay in then applying for an extension”, and “(iv) the factors which are normally to be taken into account in that balancing exercises are (a)…, (b) the reasons for the delay, (c)…, and (d)… (italics supplied)”.
39. Notwithstanding the wordings of the Summons, considering the contents of the Draft 3rd Affirmation, the varied order sought in the Notice of Appeal by the defendant, the legal ground of limitation put down therein, and confirmation given in defendant’s written submissions, the Draft 3rd Affirmation is, I think, plainly and solely prepared for the purpose of the Time Extension Application to be heard on the hearing of the Appeal. It is, I believe, to provide the materials, and the reasons for the delay, for the court to exercise its discretion to extend time for appealing or not.
40. In other words, the Draft 3rd Affirmation is, I agree, not to be adduced as evidence for the Substantive Appeal and the said Rule has therefore, I think, nothing to do with it. As such, it does not matter that the Draft 3rd Affirmation contains matters which occurred before the Order was made or that the 3 conditions of Ladd v Marshall are not satisfied in this case.
41. There is, I believe, no prohibition in RDC (or no requirement for leave in RDC) for the defendant to file or adduce the Draft 3rd Affirmation as supporting affirmation for the Time Extension Application made under O.3 r.5, RDC. And no court direction has, I note, been given so far to regulate the same.
42. In the experience of this Court, though it is not frequently done, affirmations are from time to time filed and served without leave of court in support of time summonses taken out pursuant to O.3 r.5, RDC, in order to adduce evidence to persuade the court to exercise its discretion under the said rule.
43. In fact, in Chiu Sin-chung, supra, at [226], the 1st defendant therein also made an affirmation on 18 September to set out the reasons for failure to file the notice of appeal against the order of a master in time before summons was issued on the 19 September for leave to file out of time a notice of appeal from a master’s order. Nothing about leave to admit such affirmation to give reasons for the said failure was mentioned in the report.
44. For the above reasons, the Summons need not, I think, be taken out at all. The defendant requires, in my view, no leave from this court to file and serve the Draft 3rd Affirmation in support of the Time Extension Application.
45. If, contrary to my conclusion above, the defendant requires leave of this Court to file and serve the Draft 3rd Affirmation in support of the Time Extension Application, I grant the same now in light of, among others, the factors to be considered in the Time Extension Application, the contents of the Draft 3rd Affirmation and, as I explain below, absence of prejudice to the Plaintiff.
46. Let me make it clear that I express no views on the contents of the Draft 3rd Affirmation in giving my leave for its admission now. I do not for one moment decide whether they are credible or not. Neither do I decide whether the purported explanation given for the delay concerned is excusable or not. The weight, if any, to be attached to the contents of the Draft 3rd Affirmation lies, I must stress, entirely with the judge dealing with the Time Extension Application after considering other evidence, if any, and parties’ submissions. And the said judge will decide for himself/herself how (e.g. the sequence) the Time Extension Application and the Substantive Appeal are to be argued and disposed of at the forthcoming hearing of the Appeal.
47. The admission of the Draft 3rd Affirmation into evidence now causes, I believe, no prejudice to the plaintiff as the plaintiff is free to file and serve affirmation(s) (if so advised) to respond to the same and even to argue against it at the forthcoming hearing of the Time Extension Application.
48. And I think it serves both parties well for the Draft 3rd Affirmation to be admitted now than later as there is still sufficient time for the parties to prepare consequential affirmation(s), if any, prior to the hearing of the Appeal on 18 May 2022.
49. By way of case management, I will further give directions below specifying clearly the application the Draft 3rd Affirmation is to be adduced for and giving a timetable for parties’ filing and service of consequential affirmation(s), if any, on the said application.
Disposition
50. I dispose of the Summons by ordering as follows:
(1) Leave be given to the defendant to file and serve within 7 days her 3rd affirmation in identical contents with those of draft 3rd affirmation of her attached to the Summons in support of her time extension application to file Notice of Appeal out of time on 31 January 2022 to appeal against the Order of Master Jacqueline Lee dated 4 February 2021;
(2) Leave be given to the plaintiff (if so advised) to file and serve within 14 days thereafter affirmation(s) in response to said 3rd Affirmation of the defendant;
(3) Leave be given the defendant to file and serve within 7 days thereafter affirmation(s), if any, in reply to plaintiff’s affirmation(s) in response;
(4) No further affirmation to be filed or served on defendant’s time extension application except with leave of the court; and
(5) In the event the time for the parties to file affirmation(s) as stipulated above falls on a date on which the Registry of the District Court is still closed due to general adjournment of proceedings, the deadline for the filing of the same shall be extended to within 14 days after the reopening of the Registry.
Costs
51. I have allowed the Summons as amended but not entirely for the submissions advanced by the defendant. And I have rejected opposition submissions advanced by the plaintiff.
52. But neither party in their written submissions seeks costs against the opposite party. The defendant merely asked for an order in terms of the Summons, with costs be in the cause of the Appeal[5]. The plaintiff seeks only that his own costs be taxed in accordance with the Legal Aid Regulations[6].
53. Having considered, among others, O.62, r.3(2A), RDC, and all the matters I have highlighted above, I order as follows:
(1) the costs of the Summons be in the cause of defendant’s time extension application to file the Notice of Appeal out of time on 31 January 2022 to appeal against the Order of Master Jacqueline Lee dated 4 February 2021; and
(2) plaintiff’s own costs of the Summons be taxed in accordance with Legal Aid Regulations.
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(LEE Siu-ho)
Deputy District Judge |
Mr Danny Lee of Messrs. Kwok, Ng & Chan for the plaintiff
Mr Gavin Wan, instructed by Messrs. Chan Ching Man & Co., for the defendant
[1] Cap.336H. Inherent jurisdiction was also put down in the marginal note of the Summons. But it was nowhere found in parties’ submissions. For this reason and my reasons given in this decision, I find it unnecessary to discuss this 2nd source of jurisdiction for the Summons.
[2] Paragraph 7 of Defendant’s Submissions dated 15March 2022
[3] The Plaintiff further produced parties’ abortive correspondences to agree on, and file, consent summons along such line in the past.
[4] The marginal note of the Summons does not fetter the jurisdiction of this court if it exists otherwise: Premier Fashion Wears Ltd and Another v Li Hing-chung and Another [1994] 1 HKLR 377, at [379], [382] & [383]
[5] Paragraph 10 of Defendant’s written submissions dated 15 March 2022. Paragraph 2 of the Summons also reads: “Costs of this application be in the cause of the Appeal”.
[6] Paragraph 11 of Plaintiff’s written submissions dated 18 March 2022
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