RE CHEN CHERYL DEANNA

HCB 3082/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 3082 OF 2016

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D E C I S I O N

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1.  On 9 March 2017 I handed down a decision on costs of the bankruptcy petition herein (which was dismissed on 26 September 2016), ordering (1) the costs of the proceedings up to and including 23 August 2016 be paid by the debtor to the petitioner, to be taxed if not agreed; and (2) there be no order as to the costs of the proceedings after 23 August 2016, up to 26 September 2016.

2.  At the end of my decision I also made a costs order nisi with regard to the argument on costs, stating that the debtor should pay the petitioner’s costs after 26 September 2016 excluding the costs of and relating to the 4^th, 5^th, 6^th, 7^th and 8^th affidavits of the petitioner. 

3.  By a summons dated 20 March 2017, the petitioner seeks to vary the costs order nisi so that she can have the costs of her 4^th and 5^th affidavits as well.  By an affirmation filed on 24 March 2017, the debtor asked for leave to appeal against my decision on costs.

Petitioner’s application to vary costs order nisi

4.  I will refuse the petitioner’s application.  The 4^th affidavit was made in reply to the affirmation of the debtor’s son which the petitioner said had never been served on her anyway (a copy of which she obtained late from the Registry).  The debtor however said she had served it on the petitioner.  I did not think it was necessary or proportionate to spend time to resolve that question.

5.  The debtor’s son did not attend the hearing on 28 February 2017 and his affirmation was not taken into account as a result. 

6.  Further, according to the petitioner, her 4^th affirmation was only sent to the debtor under an “amended letter” by post on 24 February 2017.  According to the debtor, she had not received the petitioner’s 4^th affirmation. Again, I did not think it was necessary or proportionate to spend time to resolve that question of service.

7.  But even if the petitioner did serve the 4^th affidavit under the “amended letter”, it would only have arrived in the debtor’s home at the earliest on 25 February, a Saturday, which was too close to the hearing date of 28 February, Tuesday, to be allowed to be relied upon.

8.  I would therefore maintain my provisional view that the costs of the petitioner’s 4^th affidavit should not be paid by the debtor.

9.  The 5^th affidavit concerned the service of the 4^th affidavit. For the above reasons also, I would maintain my view that the costs of the 5^th affidavit should not be paid by the debtor.

The debtor’s application for leave

10.  The debtor’s application to this court must also fail.  My decision is one “relating only to costs which are by law left to the discretion of the court” within the meaning of s 14(3)(e) of the High Court Ordinance (Cap 4) and therefore an appeal against it may only be brought with leave.  By O 59 r 2B(1)(b), an application to the Court of First Instance for leave to appeal may only be made within 14 days from the date of the order, ie 9 March 2017.  The period expired on 23 March 2017.  Even if I took the filing of the debtor’s affirmation on 24 March as the making of the application, it would still have been 1 day late.

11.  Further, by O 59 r 2B(5), the application should have been made inter partes.  No inter partes summons was however filed by the debtor.  Nor was her affirmation served on the petitioner (who had had to write to the court for a copy which was provided to her on 10 May 2017).  In these circumstances I do not think a proper application for leave has been made by the debtor until this hearing.

12.  As a result of a number of first instance decisions, it is now well established that this court does not have any power to extend the time prescribed by O 59, r 2B(1): see Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515, per Chu J; Menno Leendert Vos v Global Fair Industrial Limited (unrep, HCA 4200/1995, 23 April 2010), per To J; Choi Chung Bun Vincent v Australia China Holdings Limited (unrep, HCA 539/2009, 6 October 2011), per McWalters J; and Zebra Industries (Orogenesis Nova) Limited v Wah Tong Paper Products Group Limited (unrep, HCCT 46/2011, 25 July 2012), per Au J.  There is a legislative proposal to amend the rules in this respect but this has not been enacted. 

13.  Accordingly, even if I treat the application as having been made on 24 March, it must still be dismissed for want of jurisdiction.  In fact the debtor has taken out a summons in the Court of Appeal in HCMP 1061/2017 dated 8 May 2017 for leave to appeal.

14.  In any event I see no merit in the application.  Paragraphs 1 to 4 of the debtor’s affirmation raise no substantial point.  Paragraphs 5 to 25 appear to seek to challenge my conclusions as to the facts, but I do not discern any legitimate basis.  Within them, paragraphs 18 to 20 complain about a letter which was exhibited to a later affidavit of the petitioner.  However, as recorded in footnote 6 in my decision, I had specifically allowed that letter to be produced, and the debtor was cross‑examined on it.  Paragraphs 26 to 33 again seek to challenge my findings of fact, without any promising basis.  Paragraphs 34, 37 to 39 allege “bad faith” on the part of the petitioner in other matters which are irrelevant for present purposes.  Paragraphs 35–36 and 40 raise no reason against my costs decision.  Paragraphs 41 to 45 simply reiterate there are errors in my factual conclusions, without offering any ground with realistic prospect of success.

Costs

15.  Given that each of the petitioner and debtor has failed in her application, taking a global view and broadbrush approach, and having regard in particular to the history of the disputes between the parties, instead of ordering costs to follow the respective events, I would make an order in respect of each application that there be no order as to costs.