POOSAALA RAM PRASAD v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCA 279/2021

[2025] HKCFI 900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 279 OF 2021

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BETWEEN

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DECISION

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Introduction and Applicable Principles

1.  By a Notice of Appeal filed on 22 January 2025 (“NOA”), the Plaintiff (“P”) appeals against the decision of Master Thomas Kwong (“the Master”) of 20 December 2024 under O.58, r.1 of the Rules of the High Court (“RHC”).

2.  According to the sealed Order of the Master dated 20 December 2024 (“the Order”), the following orders were made:

(1) Leave be granted to D to amend its Amended Defence as per the draft Re-Amended Defence annexed to the Amendment Summons[1];

(2) Unless D do file and serve its Re-Amended Defence within 7 days from the date hereof, D shall be debarred from doing so; and

(3) Costs of and occasioned by this application summarily assessed at HK$200 be paid by D to P forthwith.

3.  However, according to P, at the hearing before the Master on 20 December 2024, the Master had explicitly ordered that unless D do file and serve its Re-Amended Defence by 4:00pm on or before 27 December 2024, D shall be debarred from doing so. D filed its Re-Amended Defence (“RAD”) on 2 January 2025.

4.  As the decision of the Master and the Order was made on 20 December 2024, and O.58, r.1(3) of RHC provides that a notice of appeal must be issued within 14 days after the judgment, order or decision was given or made, an extension of time is required for P to appeal the decision and the Order of the Master.

5.  It is trite that the Court will consider all relevant factors in considering whether to extend time to appeal including: (1) the length of delay; (2) the reason for the delay; (3) the merits of the appeal; and (4) the degree of prejudice to the other party.

6.  It is also trite that an appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats that matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master but is in no way bound by it. See Hong Kong Civil Procedure 2025, Vol. 1, §58/1/2.

Discussion and Disposition

7.  Given the delay is short, P (who is not legally represented) has given an explanation in his Skeleton Arguments dated 6 February 2025 (“P’s Skeleton”) that he had to “assess the impact” of the Order before filing the NOA, and no real prejudice to D has been suggested by Mr Law, solicitors who appeared on behalf for D, I am prepared to extend time to appeal if there are merits to P’s appeal. I now turn to consider the merits of P’s appeal.

8.  A number of grounds were set out in P’s Submissions dated 4 February 2025 and P’s Skeleton for seeking to set aside the Order, as well as to seek a declaration that D failed to comply with the unless order of the Master, to strike out the RAD, and order D not to file any further documents without leave of the court. For the avoidance of doubt, I have considered all the submissions made therein and those made orally by P at the hearing before me. I shall only set out herein the gist of those submissions and my views.

9.  Firstly, P relied on D’s failure to comply with the Order. P submitted that as D was required to file and serve the RAD by 4pm on 27 December 2024 but instead filed the RAD on 2 January 2025, D should be debarred from filing the RAD.

10.  However, from a plain reading of the sealed Order (set out above), the Master had ordered the filing and service of the RAD within 7 days from the date of the Order.

11.  P asserted in his affirmation filed in support of NOA (“P’s Affirmation”), and maintained in his oral submissions, that the Master had explicitly directed at the hearing on 20 December 2024 that the RAD be filed on or before 27 December 2024 at 4pm. Mr Law, who was present at that hearing, did not accept that any date was mentioned by the Master at the hearing and in fact the Amendment Summons had sought for the RAD to be filed and served within 7 days from the date of the order.

12.  In P’s Affirmation, P exhibited a copy of the annotated backpage of the Amendment Summons. He relied on the handwritten words (apparently of the Master) that “D do file and serve its Re-amended Defence by 4:00pm on or before 27 December 2024”. I have looked at the original Amendment Summons in the court files. The words “by 4:00pm on or before 27 December 2024” were crossed out and instead the words “within 7 days from the date hereof” were written. Next to the deletion and insertion appears the initials of the Master.

13.  Furthermore, there is a stamp on the backpage of the Amendment Summons which indicates that the draft order was approved on 27 December 2024 by the clerk to Master. From the bar table, and as stated in D’s Chronology of Events, Mr Law submitted that on 30 December 2024 he sought clarification from the court on the draft order and only on 31 December 2024 the clerk to Master informed that Master had reconsidered the draft order submitted and the approved order was ready for collection. On 2 January 2025, the approved draft order was collected, sealed and served on P.

14.  Notwithstanding the assertion by P that the order for the RAD to be filed and served within 7 days was only approved on 31 December 2024 by the Master after the original deadline of 27 December 2024 had passed (suggesting a change of the order after the hearing), it seems to me that if the Order was not the order made on 20 December 2024, it would not have been approved by the Master for sealing. There is no basis to go behind the express wording of the Order as sealed.

15.  As the express term of the Order was for the RAD to be filed and served within 7 days of 20 December 2024, and applying O.3, r.2(5) of RHC (which provides that where the period in question is a period of 7 days or less and would include a specified day, i.e. Saturday and general holiday, that day shall be excluded), the filing of the RAD on 2 January 2025 was within time.

16.  Notwithstanding there was no express reference to those provisions in the Order, O.3, r.2(1) of RHC expressly provides that “any period of time fixed by these rules or by any judgement, order or direction for doing any act shall be reckoned in accordance with the following provisions of this rule.” The rule is mandatory and applies to the Order.

17.  I do not accept P’s submissions that “the usual rules for calculating deadlines under procedural rules (such as excluding weekends or holidays) do not necessarily apply to unless orders, unless the order itself explicitly allows for such adjustments”. In P’s Skeleton, it was submitted inter alia that the case of The Triton Lark [2011] 1 WLR 3443 is a case that supports this proposition. A copy of that case was not provided to the court either before or during the hearing. As I indicated to P at the hearing, the court was not able to locate a copy of the case. P undertook to provide a copy to the court and Mr Law on or before the following Monday at noon. On the following Monday, this court received a copy of the case Pacific Basin IHX Limited v Bulkhandling Handymax AS [2011] EWHC 2862 (Comm). I have read that decision which was an appeal from an award made by arbitrators and concerned with the construction of a sub-clause of CONWARTIME 1993 incorporated into a time charter of the vessel Triton Lark (see §§1 and 30). The case clearly does not concern our rules of court and does not support the proposition advanced by P.

18.  Secondly, P submitted that there was improper use of the sealed copy of the Order and that D unilaterally extended the deadline. There is no factual basis for this allegation for the reasons given already. It was proper, after the hearing on 20 December 2024, for a draft order be drawn up, approved by the Master and then produced at the Registry for sealing. See O.42, rr.5-6 of RHC and Hong Kong Civil Procedure 2025, Vol.1, §42/5/1.

19.  There can be no suggestion that D had somehow altered the deadline when plainly the Master had approved the draft order as to the orders made at the hearing on 20 December 2024. I further do not accept the assertion in P’s Skeleton that “there is a real concern that the sealing process was flawed”.

20.  Besides, an order takes effect from the day of its date and not date of sealing: see O.42, r.3 of RHC. Any concerns about the sealing of the Order cannot affect its validity and effect.

21.  Thirdly, P submitted that at the hearing before Master Matthew Leung on 15 January 2025, D misled the court by asserting it had complied with the Order. For the reasons already given, I do not accept that there could be any misleading of the court when the RAD was filed and served within the time stipulated by the Order. Besides, if there has been any misleading of the court at most that may be a basis for setting aside or appealing against the order made by Master Leung, which is not a matter I am concerned with in this appeal against the decision of the Master.

22.  In any event, I cannot see how anything that happened after the making of the Order, is relevant to this appeal against the Master’s decision.

23.  In P’s Skeleton Arguments, P also made submissions on why the Order should be set aside because allowing D to amend was “erroneous and prejudicial to P”.

24.  The only substantive amendment introduced by the RAD is the insertion of a new sub-paragraph. See paragraph 8(6) which reads:

“By reason of the Plaintiff’s discovery, it is further denied that there was any binding agreement between the Plaintiff and the owner(s) of the subject property, i.e. the property to the extent of 9,222 square yards equivalent to 82,998 square feet at Hyderabad in India which is situated at Plot No.7, Road No 14 Banjara Hills, Hyderabad (“the Property”), for sale and purchase of the Property pursuant to Indian law.”

25.  Exercising my discretion afresh, I would also allow the amendment.

26.  It is trite that amendments should in general be allowed if they are necessary to enable the real question and controversy between the parties to be decided provided they will not prejudice the other party and if any prejudice can be compensated by an order as to costs. The court also takes into account the underlying objective in O.1A of RHC. Whilst P has submitted that there were delays in making the application to amend and he would be prejudiced by D introducing a “new defence position at a late stage”, I do not accept this is a late stage of the proceedings when witness statements have not been exchanged and there were other interlocutory applications outstanding.

27.  In P’s Skeleton Argument, there is also the submission that the “unless order imposed an unreasonable rigid timeframe for compliance, which is disproportionate and unfair to P.” Plainly, any rigid timeframe imposed was on D and could not have caused any prejudice and unfairness to P.

28.  I would also have allowed, as sought in the Amendment Summons, D to have 7 days within the date of the order to file and serve the RAD. There is no reason or justification in view of the intervening Christmas and New Year holidays to impose a tight timeframe of 27 December 2024.

29.  Therefore, even leaving aside the dispute between the parties as to what was actually ordered by the Master on 20 December 2024, in the exercise of my discretion afresh, I would have made the same order as the Master in terms of the Order.

30.  In P’s Skeleton, it was further submitted that the court should strike out the RAD. Properly understood, the present application is an appeal by P against the Master’s decision concerning D’s Amendment Summons. There was never any application before the Master to strike out the RAD, which had not by then been filed. In any event, the basis for P’s striking out the RAD is premised on the non-compliance of the Order which I have already rejected. I would accordingly refuse to strike out the RAD.

31.  Submissions were also made in P’s Skeleton that alternatively, the court should impose strict conditions on D including costs sanctions and requiring D to obtain leave before filing any further amendments or interlocutory application. Again, there was no such application before the Master which is properly appealable to me. Furthermore, the basis for such orders is premised on the breach of the Order which I have rejected. I will also not order such relief.

32.  For all the above reasons, having considered all of P’s submissions individually and cumulatively, I take the view that there are no merits in P’s appeal and I will dismiss the NOA.

33.  Costs should follow the event. I therefore make a costs order nisi that the costs of and occasioned by this appeal should be paid by P to D to be summarily assessed on paper.

34.  D has already lodged and served its statement of costs. I hereby direct that P shall lodge and serve any objections (limited to 2 pages) within 14 days from the handing down of this decision and D to lodge and serve any reply (limited to 1 page) within 7 days thereafter. I will then summarily assess D’s costs on paper.