LAI SIU WAI LOUIS lawful attorney of 譚翠好 v. HO KING YIN EDWIN AND OTHERS

DCCJ4041/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4041 OF 2011

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

1.  This is the defendants’ application for leave to appeal against the decision made by this court on 24 April 2012. This application was taken out on 22 May 2012.

2.  The plaintiff opposed the application, saying that it was made out of time.  The defendant argued that it was made within the time under the relevant Rules of the District Court (“RDC”).  Very clearly, the summons was made on the basis that it was not out of time.  There has been no amendment to the summons.  In the course of submission, the defence counsel says that if this court finds that the application was out of time, then this court should grant leave to appeal out of time.  Now, I have to consider what is the application before I make the decision.  Very clearly, there is only one application, namely, that the defendants be granted leave to appeal on the basis that it was within time.  There is no amendment to the summons.  The defence counsel asked me to grant leave out of time if the application was made out of time.  Now, the application out of time cannot be conditional, namely, it cannot be made conditional upon the finding by this court that it was made out of time, because before this court makes the decision, there is no application relating to appeal out of time.  This is quite clear.  The defence counsel made this application on the basis that it was within time, so he cannot also at the same time say that this application was made within time.  This would be contradictory.

3.  When I make my decision regarding whether it was out of time or not at that time, there cannot be any application before me by the defence counsel if the decision is against him, namely, it was out of time.  So put it simply, there is no application to the effect that this summons was made on the basis out of time.

4.  According to Order 58, rule 2, sub-rule (2)(b),

“an appeal shall lie to the Court of Appeal from any judgment, order or decision of a judge.

(2) Subject to the provisions of this rule, an appeal lies to the Court of Appeal from-

(b) a judgment, order or decision (other than an interlocutory judgment, order or decision) of a master given or made under Order 49B.

Sub-rule (4),

“An application for leave to appeal must be made to a judge, or to a master in the case of an appeal under paragraph (2), within-

(a) in the case of an appeal from a judgment, order or decision of a master under paragraph (2), 28 days from the date of the judgment, order or decision;

(b) in the case of an appeal from a judgment, order or decision (other than an interlocutory judgment, order or decision) of a judge, 28 days from the date of the judgment, order or decision;

(c) in the case of an appeal from an interlocutory judgment, order or decision of a judge, 14 days from the date of the interlocutory judgment, order or decision.”

5.  I have to consider and decide whether the order I made on 24 April 2012 is an interlocutory order or decision.

6.  According to Order 58, rule 4,

“the following judgments and orders are not interlocutory-

(a) a judgment or order determining in a summary way the substantive rights of a party to an action;

(b) ......

(c) ......

(d) ......

(e) ......

(f) ......

(2) Without affecting the generality of paragraph 1(a), the following are judgments and orders determining in a summary way the substantive rights of a party-

(a) a summary judgment under Order 14 or Order 86;

(b) an order striking out an action or other proceedings or a pleading or any part of a pleading under Order 18, rule 19 or under the inherent jurisdiction of the Court.”

and then sub-rule (4),

“A reference to an order specified in paragraph (1)(b), (c), (d) and (e) includes an order refusing, varying or discharging the order.”

7.  I have to consider whether the order I made falls within the ambit of Order 58, rule 4(2)(b) or sub-rule (4).  On 24 April 2012, I only made one order.  The order is costs of the striking-out application be to the plaintiff, to be taxed if not agreed, with certificate for counsel.  In that morning, the defence counsel informed this court that the defendants would not pursue the striking-out application.  Clearly, this is because the plaintiff had amended the statement of claim.  It would not be necessary to pursue the application for striking out.  Therefore, in that morning, I did not make any order relating to striking-out application.  That means to say, the application for striking out was not considered, and therefore, no order relating to striking-out application was made, but I still have to consider the costs of that application, the striking-out application.  That issue was contested by the plaintiff and the defendants, and I made the order for costs as I referred to herein above, so it is clear that I did not make any order under Order 58, rule 4, sub-rule 2(b) and sub-rule (4). 

8.  The application for striking out the plaintiff’s claim was not pursued, and therefore, there cannot be any order made under rule (4), sub-rule 2(b) or sub-rule (4).  Hence, the order relating to costs of the striking-out application did not go to determine the substantive rights of the parties concerned.  It is not a non-interlocutory order.  It is simply an interlocutory order, and so, the application to appeal against the order must be made within 14 days from the day the order was made.  Hence, the present summons application was made out of time.  I have no jurisdiction to deal with this application and so I dismiss the application.

(Discussion re costs)

9.  Before I made the costs order, I have to say that the Court of Final Appeal decision, the Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Another, decided in (2003) 6 HKCFAR 222, CFA, has no application to this case, because that deals with Order 14A of the High Court rules.  The defence counsel cited to me paragraph 26 of that case.  That case does not deal with the rules I referred to herein above in this decision.  It refers to Order 14A of the High Court rules.  It is not applicable.  We have to apply statutory rules made in 2008.  The CFA appeal case, CFA decision does not deal with similar rules under the High Court Ordinance, if any, so the decision of that case is not helpful to the defence.

10.  I make an order for costs.  Costs of this application be to the plaintiff, to be taxed if not agreed, with certificate for counsel.