LAI KIN WAH t/a SUIFAN'S MEDICINE CO v. TAI CHUNG MEDICINE CO t/a PO TO DEPARTMENT STORE AND ANOTHER

IN THE COURT OF APPEAL

1987 No. 101
(Civil)

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JUDGMENT

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Silke, V.-P.:

1. This appeal was adjourned on 23^rd October because of the total lack of compliance with O.59 r.9 and was re-listed for this morning. We are now informed by Miss Wong, who now appears for the Appellant, that the Appellant wishes to abandon his appeal.

2. We are not particularly surprised that that course has been taken. So far as the bundle which has been produced for this hearing is concerned it is totally deficient. It does not contain the pleadings; it does not contain any part of the transcript of evidence, if there were any evidence taken orally, in the Court below; it does not contain any list of exhibits and it does not contain any of the affidavits which were relied upon in the Court below and which are referred to in the Notice of Appeal. If those concerned with the preparation of the appeal had read their own notice they would have seen quite clearly that these matters were necessary to be placed before the Court before the Court could even consider the appeal itself.

3. But we are told that the Appellant has abandoned his appeal and that, of course, is accepted. The issue is now the costs.

4. Mr Garland who appears for the Respondent suggested that these costs should be on an indemnity basis because the Respondent should not be out of pocket at all in relation to these proceedings. The Appellant, through counsel, has accepted that the costs should be on a common fund basis. We will not derogate from that acceptance and the order will be that the appeal is dismissed with costs on a common fund basis.

5. We direct that a copy of that which we have just said, together with the copy of the judgment of 23^rd October 1987, be served personally on the lay Appellant, Tai Chung Medicine Company trading as Po To Department Store.