方國珊 v. 關雄盛作為已故何淑明的遺囑執行人

CACV 528/2019

[2021] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 528 OF 2019

(ON APPEAL FROM HCSD 47/2019)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the decision of this Court on the question of costs of this appeal.

2.  The appeal is an appeal against the decision of G Lam J of 6 November 2019 dismissing the application by the Applicant for setting aside a statutory demand issued by the Respondent.  The statutory demand was issued on 11 October 2019 and it was based on a judgment of the Court of First Instance in HCA 265/2012 of 9 July 2019.  The Applicant served a Notice of Appeal in respect that judgment on 14 August 2019.  The setting aside application was made by the Applicant on 22 October 2019.

3.  The reasons given by G Lam J for dismissing the application was set out in a letter of 6 November 2019 as follows,

“ It is well established that in an application to set aside a statutory demand based on a judgment or order, the court will not go behind the judgment or order to examine, for example, whether the judgment or order should have been made or the merits of the dispute giving rise to the costs order: see e.g. Leung So Hung Siem v Carson Wen [2019] HKCA 678, para 18. In the present case there is no order staying execution of the judgment. Neither an appeal nor an application for stay of execution pending appeal operates in itself as a stay of the judgment. The dispute of part of the amount demanded is not a ground for setting aside the statutory demand unless the debtor pays the undisputed part. There is accordingly no basis to resist the statutory demand. The application to set aside the statutory demand is therefore dismissed under rule 48(1) of the Bankruptcy Rules (Cap 6A).”

4.  The Applicant served a Notice of Appeal in this appeal on 19 November 2019.

5.  In parallel with the setting aside application, by a summons of 9 October 2019 the Applicant applied to the Court of First Instance in HCA 265/2012 seeking a stay of the execution of the judgment in that action.  The summons came before W Chan J on 17 December 2019.  The application was adjourned because the Applicant asked for more time to file further evidence in support.  She filed her second affirmation on 6 January 2020 and the Respondent filed evidence in opposition on 9 March 2020.

6.  In the meantime, after the dismissal of the setting aside application, a bankruptcy petition was presented against the Applicant in HCB 7283/2019 and it came before a master on 15 January 2020.  The master adjourned the matter and the hearing of the bankruptcy petition was to take place on 22 July 2020.

7.  On 10 March 2020, the Applicant paid the judgment debt.  She said she did so because the master told her that upon bankruptcy her ability to proceed with the appeal against the judgment in HCA 265/2012 would be curtailed.

8.  She also said she had no other alternative because she could not fix a date for the hearing of her stay application before the bankruptcy hearing due to the delay on listing arising from COVID-19 pandemic.

9.  After making the payment, the Applicant wrote to the court to discontinue the present appeal on 17 June 2020.  In the Notice attached to her letter, she asked for the discontinuance of the appeal with no order as to costs.  She did so after the Registrar of Civil Appeals (“RCA”) reminded her on 5 June 2020 to comply with earlier directions for lodging draft appeal bundle.

10.  The RCA wrote back on 29 June 2020 informing the Applicant that if she wished to have the appeal dismissed she should follow the procedure set out in Practice Direction 4.1. 

11.  The Applicant failed to respond to that direction.  Therefore, on 10 September 2020, the RCA gave her another reminder.  She again failed to respond. 

12.  On 28 September 2020, Lam VP issued an unless order providing for the dismissal of the appeal with costs unless she objected to the same by 14 October 2020.

13.  On 29 September 2020, the Court received a letter from the Applicant (which was sent on 28 September 2020) addressing to the RCA setting out her explanation for seeking a dismissal of the appeal with no order as to costs as stated at [6] to [8] above.

14.  The Court directed the solicitors for the Respondent to respond to such request.  By a letter of 12 November 2020, solicitors for the Respondent referred to the history of the matter, including the history of the Applicant’s application for stay in HCA 265/2012.  The solicitors submitted that the Applicant should bear the costs of the appeal since there was no good reason in the present case for departing from the general rule that a party seeking dismissal of his own appeal should bear the costs of the same.  It is irrelevant that the Applicant was ignorant of the law.  It was also submitted that the Applicant could not get any mileage from her inability to obtain a stay since the court was prepared to adjudicate on her stay application on 17 December 2019 and the application was only adjourned at her request.  Further she could have brought to the attention of the master hearing the bankruptcy petition if she had real difficulties in terms of restoring the stay application before the bankruptcy hearing.  The solicitors also said in any event there was no merit in the present appeal.

15.  The Applicant was given the opportunity to reply to these submissions.  On 11 December 2020 (the letter was actually sent on 12 December 2020 and received by the court on 15 December 2020), she wrote to the court and simply reiterated that she decided to have the appeal dismissed because the debt had been paid and no order for costs in the appeal is reasonable in the circumstances.

16.  Having considered the submissions of the parties, we will order that the appeal be dismissed and that the Applicant shall pay the costs of the Respondent in the appeal. 

17.  We agree with the submission of the Respondent that there is no good reason to depart from the general rule that a party seeking to have his own appeal dismissed should pay the costs of the appeal. 

18.  First and foremost, we cannot see any merit in the appeal.  The law is clearly set out by G Lam J by reference to Leung So Hung Siem v Carson Wen [2019] HKCA 678. 

19.  Second, the Applicant cannot rely on the difficulty (assuming there was any) in restoring the stay application as a ground for resisting costs in this appeal.  She must bear the consequence of her own decision in terms of the bringing of the appeal which inevitably occasioned costs in the process.  It was entirely a matter of her own decision in deciding whether to pay the judgment debt after considering all the pros and cons.  As submitted by the Respondent, she could seek to have the bankruptcy petition further adjourned if she was still waiting for the restoration of her stay application when the petition was coming on for hearing.  The master would then assess if that would be sufficient ground for adjourning the petition. Alternatively, the Applicant could have written to ask the court to process her stay application on an expedited basis in light of the bankruptcy petition.  It was also possible for the stay application to be processed on the papers.

20.  The Applicant did not provide details of her attempts to restore the hearing of her stay application after the filing of the Respondent’s affirmation on 9 March 2020 and before her payment on 10 March. 

21.  In the circumstances, we do not accept her assertion that she decided to make payment on account of her difficulty to restore her stay application.

22.  We therefore do not see any injustice for ordering the Applicant to pay the costs of the Respondent and such costs are to be taxed if not agreed.