THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD v. SY SHUN WU AND OTHERS

HCMP 3269/2016

[2018] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3269 OF 2016

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D E C I S I O N

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1.  This is an application for an extension of time for filing a notice of appeal.  Time expired on 23 February 2018.  There has been a delay of 24 days.  It was submitted that it was a very short period of delay and is excusable. 

2.  The real cause of the delay is that the defendants were unable to raise funds for the appeal and hence to instruct a legal team for that purpose until after 1 March. By that time the period for filing a notice of appeal had already expired.

3.  There were other reasons.  It was said that the solicitor was confused as to the nature of the order granted and that subsequently the further 12 days’ delay had been caused by some misunderstanding that the application had to be made to this court rather than to the Court of Appeal.  I do not think those matters really affect the key point which here is a defendant who well knowing that the time period would expire on 23 February was unable to raise funds.  I find that the delay is inexcusable.

4.  At the hearing today, Mr Koo, who appeared for the defendants, tried to run a new point (which is not in the evidence) to the effect that actually the solicitor had misunderstood the date from which the period should be calculated, whether it was the date of the decision or the date of the reasons being handed down.  It is a completely new argument and that is hopeless.    

5.  I turn to the merits.  It was submitted that there are real prospects of success in relation to the collateral agreement point.  I have set out in my Reasons for Decision why the collateral agreement argument does not get off the ground.  Nothing that was said this morning changes my mind.

6.  There was a further attempt to introduce yet a new point as to whether the loans were open-ended or whether (despite the collateral agreement) the bank could decide not to renew facilities under certain revolving loans.  I have to say it is too late for this to be raised, apart from the fact that the point is hardly comprehensible. It would be a waste of time to exercise my discretion to extend time for filing the notice of appeal.  The case is hopeless.

7.  This is not a complicated case.  It is a straightforward standard commercial banking transaction for facilities for trading purposes and for obtaining a mortgage loan.  It is not a complicated or fancy financial transaction and I see absolutely no merit in any appeal were I to grant leave.

8.  I would therefore dismiss the application.   

9.  Costs will follow the event.