RUSSELL PETER BROWN AND OTHERS v. EDWARD EUGENE LEHMAN

HCA 959/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 959 OF 2010

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BETWEEN

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D E C I S I O N

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1.  This is an application by the defendant for leave to appeal against my decision given on 27 April this year.

2.  Part of my decision does not require leave to appeal because that part was an order refusing to set aside a default judgment (see Order 59 rule 21(2) (h) of the RHC). 

3.  For the other respects of my judgment, the application for leave is.  The test is whether the appeal has a reasonable prospect of success.  It has been explained in the case of SMSE v KL [2009] 4 HKLRD 125 at para 17 per Le Pichon, JA that “reasonable” means more than fanciful but without having to be probable.

4.  I must say that the defendant does not seem to be ready with the application.  The skeleton of counsel is in conflict with the grounds of appeal on whether the interlocutory injunction granted by To J is still in effect despite the giving of the interlocutory judgment for damages to be assessed.  That issue in any case was not a matter that I had decided as I had made it clear that was not a matter before me. 

5.  The main ground as presented by Mr Allman-Brown this morning is that the claim for permanent injunction by the plaintiff should have been formally abandoned by an application to the court made either orally or in writing.  He further submitted that this had not been done.  Hence, the claim for permanent injunction is still extant.  Hence, the plaintiff should have filed and served a statement of claim and no default judgment should been entered before the time for filing the defence has expired.  This was not done by the plaintiff.  Hence, the default judgment should be set aside.

6.  I agree with the submission that the claim for permanent injunction should have been abandoned before a default judgment can be applied for or granted for damages to be assessed.  I have, however, clearly held that the plaintiff has already done that by the affidavit of Miss Greene. I therefore hold that the defendant has no reasonable chance of success in the contemplated appeal.

7.  I therefore dismiss the application and order costs of the application be paid by the defendant to the plaintiffs.