WAH SUN HONG LTD v. WONG LEE YUK PING AGNES

HCMP 3276/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3276 OF 2016

(On intended Appeal from HCA No. 874 of 2015)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

Introduction

1. By a judgment dated 12 August 2016, Deputy Judge Wilson Chan (“the Judge”) ordered that unless the defendant do provide the Outstanding Particulars (as defined by him at [3] of his Judgment) by 4 pm on 9 September 2016, those parts of the defence to which the Outstanding Particulars relate as enumerated in Schedule 2 to the plaintiff’s summons dated 11 March 2016 be struck out (“Unless Order”).

2. The defendant then applied for leave to appeal against the Unless Order, which was dismissed by the Judge on 10 November 2016.  The defendant now renews its application for leave to appeal before this Court.

The Unless Order

3. The Judge has summarized the factual background history and the parties’ pleadings and the procedural history leading to the plaintiff’s application for the Unless Order at [7]-[15] and [1]-[4] of his judgment respectively.  We shall respectfully adopt his summary and the nomenclatures he used without repeating them here.

4. The Judge at [5] of the his judgment identified three issues for his determination :

(1)   Whether the defendant has provided the Outstanding Particulars in full compliance with the FBP Order;

(2)   If not, whether the defendant should provide the Outstanding Particulars to fully comply with the FBP Order; and

(3)   What terms should be imposed when the court exercises its jurisdiction under Order 45, rule 6 of the Rules of the High Court, Cap 4A.

5. On Issue (1), The Judge ruled that the defendant had not provided the Outstanding Particulars.  Mr Cheung, for the defendant, argued that the FBP Order was merely a “time” order, which the defendant complied with by providing the further and better particulars on 11 February 2016.  In relation to the Outstanding Particulars, the defendant said that either the plaintiff was not entitled to them or they were irrelevant.  Mr Cheung next submitted that the FBP Order did not oblige the defendant to answer those requests which the plaintiff was not entitled.  The Judge rejected Mr Cheung’s arguments, citing the judgment of this Court in Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei, HCMP 2773/2015, unreported, 14 March 2016, [14] in support.

6. On Issue (2), the Judge could see no reason why the defendant should be released from the obligation of complying with the FBP Order.

7. On Issue (3), having regard to, among other things, the procedural history and the delay involved, the Judge considered that an unless order was appropriate.  He therefore made the Unless Order.

Discussion

8. It is well established that in order to obtain leave to appeal, the defendant must show that her intended appeal has a reasonable prospect of success : SMSE v KL [2009] 4 HKLRD 125.

9. Mr Hingorani, for the defendant in this application, raised a total of 6 grounds of appeal.

10. The first ground of appeal complained that the Judge erred in construing the plaintiff’s summons dated 7 December 2015 seeking an order that the defendant do provide the Outstanding Particulars as falling within Order 45, rule 6 of the Rules of the High Court because it was not taken out under that particular rule which relates only to extension of time.  The Judge therefore erred at [17] of his judgment in applying Re Ho Yuk Wah David (bankrupt) [2015] 2 HKLRD 603 against the defendant.

11. It is plain that when the Judge cited Order 45, rule 6 and Re Ho Yuk Wah David (bankrupt), he was dealing with the plaintiff’s summons for the Unless Order, and not the earlier summons for further and better particulars dated 7 December 2016.  The first ground of appeal is wholly misconceived.

12. The second to fourth grounds of appeal can be dealt with together.  They all concern the meaning and effect of the FBP Order.  Mr Hingorani argued that the FBP Order does not prohibit the defendant from raising objections to the Request.  Counsel basically repeated Mr Cheung’s submission before the Judge that the FBP Order was just a time order and no more.

13. In our view, the Judge was entirely correct in his construction of the FBP Order.  In no ambiguous terms, it directed the defendant to provide the further and better particulars sought within 28 days of the order.  The Judge was correct in applying Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei.

14. The fifth ground of appeal complained that the Judge erred in applying Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei.  But as said, the Judge had correctly applied the principle set out at [14] of Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei to the present case.

15. The final ground of appeal complained that having erroneously found that the defendant could not “re-argue” the plaintiff’s entitlement to the Outstanding Particulars, the Judge failed to give proper individual consideration to each of the answers provided and erred in finding that the defendant had not answered the Outstanding Particulars by relying on the plaintiff’s non-entitlement or the ground of irrelevance.

16. However, since on a proper construction of the FBP Order, the defendant must provide the Outstanding Particulars, it does not lie in her mouth to raise non-entitlement or irrelevance as an objection : see Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei, [18].

Conclusion

17. For the above reasons, none of the grounds of appeal is reasonably arguable.  We refuse to give leave.

18. Further, as this application is wholly unmeritorious, we make an order under Order 59, rule 2A(8) of the Rules of the High Court that no party may request our determination to be reconsidered at an oral hearing inter partes.

19. Costs should follow event.  We order the defendant to pay the plaintiff’s costs, to be assessed summarily on paper.  The plaintiff should file its statement of costs within 14 days from the date of this judgment.  The defendant should file its list of objection within 14 days thereafter.