THE JOINT APPLICATION OF MMEA nee MMEA v. MTM aks MTMS

FCJA 2320 /2012

[2018] HKFC 96

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2320 OF 2012

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REASONS FOR DECISION
(Leave to Appeal out of time)

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Introduction

1.  This is the 2^nd Applicant’s application for leave to appeal out of time in respect of paragraph 6 of this Court’s Order dated 5 December 2013 (“2013 Order”).

2.  The 2^nd Applicant’s Summons was dated 16 May 2016 but filed on 10 June 2016, that is, some 2½ years after the 2013 Order was granted.  The 2^nd Applicant (“Father”) also filed a supporting affirmation on the same day.

3.  Paragraph 6 of the 2013 Order reads :-

“6. By Consent, the 2^nd Applicant do pay the 1^st Applicant arrears of maintenance pending suit of HK$72,700 by 4 instalments of HK$18,175.00 per month, the first payment be on 20^th December 2013 and thereafter on or before the 20^th day of each succeeding month until full payment.”

4.  The 2^nd Applicant’s supporting affirmation reads as follows :-

“Due to failure of previous Legal Counsel follow up and case adjournments, I wish to apply for leave out of time against paragraph 6 of the court order dated 5^th December 2013 and refund of the $72,700

maintenance arrears ordered to be paid to 1^st Applicant.”

5.  Both parties are unrepresented for this hearing.  However, both of them were legally represented on the date when the 2013 Order was granted. 

6.  At this hearing, the 1^st Applicant confirmed full payment of the said HK$72,700 by the 2^nd Applicant had been received.

The applicable law and legal principles

7.  The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.  It is trite law that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, that is to say, the 2^nd Applicant in this case.

8.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA at paragraph 9 of that Judgment).

9.  When determining whether leave to appeal out of time should be given are, the following factors have to be considered :-

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of success;

(d) the extent of prejudice that would be caused to the other party if leave is granted.

(see : Norwich and Peterborough Building Society v. Steed [1991]WLR 449 followed by Birkenhead Properties & Investments Ltd v. Leung Yiu & Ors [1998] 1 HKLRD 527.)

The Court’s Views

10.  It is entirely a matter of discretion for the Court as to whether justice could be served by allowing extension of time for seeking leave to appeal.  It is for the party seeking indulgence to satisfy the Court on the 4 factors set out in the Norwich decision (supra).

11.  In the present case, the 2^nd Applicant is seeking leave to appeal a consent order granted about 2 ½ years ago when he himself was legally represented.  Any blame or grievances against his or her own legal representative is not a viable ground for seeking leave to appeal.  Further, it was confirmed by the 1^st Applicant that the 2^nd Applicant had already complied fully with paragraph 6 of the 2013 Order.  There had never been any application for stay of the said paragraph 6 though any such application would be futile.  Thus, there is also an issue as to estoppel against 2^nd Applicant for bringing the present application or the issue of prejudice to the 1^st Applicant. 

12.  From reading the 2^nd Applicant’s supporting affirmation and also given full consideration to his oral submissions in Court today, I find that he was unable to provide any reasons for the protracted delay of some 2½ years nor was he able to demonstrate any prospects of success in his intended appeal. 

Any exceptional circumstances?

13.  Apart from the 2^nd Applicant being unable to seek this Court’s indulgence for extending the time for seeking leave to appeal, I have considered and concluded that he also failed in showing that there are any exceptional circumstances justifying that leave to appeal should be given in the interests of justice even though there was no issue as to time extension.

14.  In my decision, the 2^nd Applicant’s Summons must be dismissed.

My Orders

15.  I now make the following Orders :-

(a)  The 2^nd Applicant’s Summons dated 16 May 2016 be dismissed;

(b)  There be no Order as to costs.