WOO MING HAN JULIANA v. WOO KOO PING AND OTHERS

HCA 2558/2015

ACTION NO 2558 of 2015

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REASONS FOR DECISION
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Introduction

1.  On 20 November 2015, I made the following orders (“my 20 November 2015 Decision”):

(1) the stay of proceedings herein by reason of the plaintiff’s application for legal aid on 17 November 2015 be uplifted;

(2) the plaintiff do provide security for costs in favour of the defendants by paying into court the sum of $200,000 as security for costs up to 30 November 2015 by 4 pm on 23 November 2015 failing which all proceedings be stayed until further order; and

(3) the plaintiff do forthwith pay the defendants’ costs of the summons issued on 20 November 2015 assessed in the sum of $50,000.

2.  The reasons for my decision (“my 30 November 2015 Reasons”) were handed down on 30 November 2015.  My 30 November 2015 Reasons are incorporated by reference.  I shall use the same abbreviations.

Plaintiff’s application for leave to appeal

3.  The plaintiff had been represented by Mr Martin Ho, instructed by Hui & Lam, in these and other proceedings, including the lifting of legal aid stay matter and in the security for costs matter.

4.  However, on 27 November 2015, the plaintiff filed a notice to act in person in this action, giving an address in Laguna City (“the Laguna City address”) as her address for service.  She told me at the hearing on 17 December 2015 that she neither resided nor worked at the Laguna City address.

5.  As recently as 15 December 2015, Hui & Lam were still acting for the plaintiff in correspondence with Fung, Wong, Ng & Lam, the defendants’ solicitors.

6.  On 4 December 2015, acting in person, the plaintiff issued a summons asking for leave to appeal against my 20 November 2015 Decision giving the address referred to in para 36 of my 30 November 2015 Reasons as her address (“the Peak Address”). 

7.  She filed an affirmation on 4 December 2015 in support of her summons.  She gave the Peak Address as her address.

8.  In slightly more than a month, three addresses had been given — the address at the Property, the Laguna City Address and the Peak Address.  She had also mentioned living at a hotel, without disclosing the name or address of the hotel.

9.  Her application for leave to appeal was opposed by the defendants who argued that my decision was unassailable.

My order on 17 December 2015

10.  On 17 December 2015, I refused the plaintiff’s application with costs summarily assessed at $50,000 to be paid by the plaintiff to the defendants immediately.

Preliminary matters

11.  The first preliminary matter is that the plaintiff defaulted in furnishing security for costs by 4 pm on 23 November 2015 or at all.  The stay consequent upon default came into effect and was still effective at the time of her application for leave to appeal.  An appeal does not operate as a stay.  She did not ask for stay pending appeal of my order. 

12.  It was not open to her to flout my stay order by asking for leave to appeal.  Her application should be dismissed for this reason.

13.  Nevertheless, and for completeness, I shall consider her application for leave on its merits.

14.  The second preliminary matter is that, without leave of the Court, no affidavit evidence is admissible in an interlocutory appeal from a judge. Nevertheless, I shall deal with the arguments raised by her which essentially repeated Mr Martin Ho’s arguments at the previous hearing.

Security for costs decision

15.  For reasons given in my 30 November 2015 Reasons, the address of the Property was plainly not her address.

16.  My 20 November 2015 Decision was that para 7 of Mr Dai Chun Wa’s affirmation did not disclose admissible factual evidence of the plaintiff’s address.  A few hours were sufficient for Mr Dai to file admissible evidence of the plaintiff’s true address.

17.  Further, contrary to the plaintiff’s allegation, the hearing on 20 November 2015 for security for costs was not a directions hearing (「指示聆訊」).  On 13 November 2015, the defendants issued the summons for security for costs on the ground that the plaintiff “incorrectly stated her address and/or failing to state her address on the writ” on.  20 November 2015 was the return date of the defendants’ summons.  The defendants’ aim was to protect themselves on costs incurred or to be incurred in the opposition to the plaintiff’s application for interlocutory injunctions which had been part heard and adjourned to 30 November 2015.

18.  I am not persuaded that there is any arguable ground to appeal against my decision on security for costs.  I declined to give leave to appeal.

Decision lifting legal aid stay

19.  For reasons given in my 30 November 2015 Reasons, I consider my decision lifting legal aid stay unassailable. 

20.  Further and in any event, the intended appeal is academic.

21.  The Director of Legal Aid gave notice on 17 November 2015 that the plaintiff had applied for legal aid.  Forty‑two days would expire on 29 December 2015.

22.  The legal aid stay was lifted on 20 November 2015 by me.  However, the action was stayed three days later on 23 November 2015 upon the plaintiff’s default to furnish security for costs. 

23.  By the time of hearing of the plaintiff’s intended appeal, the 42‑day legal aid stay would have expired and the appeal would be academic.

24.  The hearing on 17 December 2015 was not a directions hearing. The plaintiff issued a summons for leave to appeal with 17 December 2015 as its return date.  She should be ready and if she was not, she had herself to blame.

25.  I am not persuaded that there is any arguable ground to appeal against my decision on lifting of the legal aid stay.  I declined to give leave to appeal.

Disposition

26.  In my judgment, the plaintiff’s intended appeal has no prospect of success.  I refused the plaintiff’s application with costs summarily assessed at $50,000, to be paid by the plaintiff to the defendants immediately.