XCHRX GUIDO KARL WENK v. ALAN LEE GOLDSTEIN

HCMP003908A/1997

HCMP3908/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3908 OF 1997

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J U D G M E N T

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1. This is an application by the Defendant for an order that notwithstanding the expiration of the time limit provided and prescribed for serving the Notice of Appeal dated 24th September 1998 pursuant to Order 58 r.1(3) of the Rules of the High Court, the Defendant do have leave to serve his Notice of Appeal within 14 days from the date of the order to be made herein.

2. The Plaintiff in this case has obtained a judgment in the Singapore courts. That judgment is dated 28th February 1996 and it was adjudged that the Plaintiff do recover against the Defendant the sum of S$230,500.00 together with interest and costs. That judgment, pursuant to an order of Master Cannon made on 4th December 1997, was registered in Hong Kong. Also registered was the Registrar's Certificate dated 29th August 1996 from the High Court of the Republic of Singapore that the Plaintiff's bill of cost in relation to that action in Singapore was taxed and allowed at the sum of S$46,152.05. That Registrar's Certificate was also registered as a foreign judgment pursuant to the order of Master Cannon dated 4th December 1997.

3. Notice of Registration of the foreign judgment dated 17th February 1998 was served on the Defendant on 7th March 1998. There was a summons to set aside which was eventually heard by Master Bennett on 17th September 1998 and on 18th September 1998, he dismissed the Defendant's application to set aside the order of Master Cannon dated 4th December 1997.

4. On 24th September 1998, the Defendant's solicitors issued the Notice of Appeal from the decision of Master Bennett. However, that Notice of Appeal was not served and has not been served. It should have been served within 5 days after issue, namely, by 29th September 1998. As it has not been served, there is no effective appeal from the decision of Master Bennett. That is also the view that Rogers J.A. took in his decision dated 15th October 1998 in a related appeal where Rogers J.A. was dealing with an application for security for costs by the Plaintiff in this action in respect of an appeal that the Defendant had lodged.

5. I have been told that there was a trial in Singapore and there was also an appeal to the Court of Appeal in Singapore. And after that, the judgment has been registered in Hong Kong. The Plaintiff has obtained a judgment which has not yet been satisfied and that judgment has been registered in Hong Kong.

6. There has been delay by the Defendant in respect of service of the Notice of Appeal. As I have said, it should have been served by 29th September 1998. And this application is before me today on a summons issued on 19th October 1998 which asks for an order that the Defendant do have leave to serve the Notice of Appeal within 14 days from the date of the order to be made. It is not a substantial period of delay but it is nevertheless some delay. I have to take into account the background in the litigation. I have been told that there have been 3 previous extensions of time sought by the Defendant to set aside the order of Master Cannon. The first was by a summons dated 25th April 1998, the second was by a summons dated 28th May 1998 and the third was by a summons dated 29th May 1998. There seems to be a history of delay in this matter on the part of the Defendant.

7. As to the reasons for the delay, the Defendant, in his fourth affirmation, says that on or about 23rd September 1998 he was informed by his solicitors that counsel's opinion was not yet available but the deadline for issuing a Notice of Appeal was due. And he says he instructed his solicitors to issue a Notice of Appeal to preserve his position pending the advice of counsel and his instructions. On that basis, a Notice of Appeal was issued on 24th September 1998. He says this in para. 7 of his fourth affirmation:

"After I have been advised that Counsel shared the same view as my Solicitors, I instructed my Solicitors that I needed to think it over because of the costs involved and the fact that the Plaintiff in these proceedings also on 24th September 1998 took out an application for security for costs in respect of another appeal in these proceedings."

And then he goes on to say that he was preoccupied dealing with the application for security for costs taken out by the Plaintiff and that there was an oversight in the time for the service of the Notice of Appeal from the order of Master Bennett. He says that it was due to inadvertence and the fact that all parties concerned were engrossed in dealing with the application for security for costs.

8. I have set out what he said in para. 7 because I think there it shows that he wanted to reconsider the matter as to whether or not he wished to pursue the appeal and incur more costs over the matter. And to say that the failure to serve the Notice of Appeal was due entirely to oversight may be, in my view, overstating it. If he made a conscious decision not to proceed with the appeal because he wanted to think over his position on the question of costs, then he has only himself to blame for not insisting that the appeal be served. The evidence shows that the solicitors for the Defendant in a conversation with the solicitors for the Plaintiff refused to serve the Notice of Appeal notwithstanding that it had been issued and it now transpires that they simply misread the rules and inadvertently thought that it should have been served two days before the hearing of the appeal. But again this demonstrates that the Defendant's solicitors consciously made a decision not to serve the Notice of Appeal. It may be that they were also concerned with incurring further costs in this matter or it may be due entirely to their oversight and a misreading of the rules. So, I think Mr. Giles is right to say that it is not an accurate account that everyone was engrossed in dealing with the application for security for costs and the delay was for that reason as Mr. Goldstein, the Defendant seems to suggest in para. 10 of his fourth affirmation.

9. In the circumstances, I am not satisfied with the explanations that have been put forward for delay. It does not excuse delay, in my view.

10. Mr. Yau for the Defendant has submitted that he has a meritorious appeal. There are questions which are arguable on the Foreign Judgment (Reciprocal Enforcement) Ordinance (Cap. 319) and as to how that Ordinance is to be applied in the light of the Reunification Ordinance. I would only go so far as to say that there are arguable points on the appeal but do not go so far as to say that there are strong grounds of appeal put forward. In this context, I would refer to what Rogers J.A. said when he gave his decision on the application for security for costs on 15th October 1998. He said he was not satisfied, however, that the merits of the appeal were so strong that they should override an order for security for costs. As I have said, I think the Defendant has arguable grounds for an appeal. I would not go so far as to say that there are strong grounds.

11. I am convinced that the Plaintiff will be prejudiced by any further delay in this matter. He has been kept out of his judgment for long enough. It must be remembered that he has a judgment which has been obtained after trial in Singapore and after an appeal. And that judgment has been registered in Hong Kong.

12. I was referred to the judgment of Godfrey J.A. in Lessy Sarl v. Pacific Star Development Ltd. [1997] 3 HKC 306 at 310 where Godfrey J.A. set out the guidance given in the English Court of Appeal in the case of Mortgage Corp. Ltd. v. Sandoes (The Times, 27 December 1996, unreported). That case has been mentioned in the 1999 White Book in the marginal note 3/5/3 where the learned editors stated that the true position is that once a party is in default, it is for that party to satisfy the court that discretion should nonetheless be exercised in his favour and for such purpose he may rely on any relevant circumstances. I observe also that in the Mortgage Corp. Ltd. v. Sandoes case, it was a case where the judge had refused to grant the plaintiff an extension of time for exchanging witness statements. That concerned an interlocutory step in the proceedings. Where there has been judgment, I think that the court should be slow to grant extensions of time unless the party in default can satisfy the court that it should do so.

13. In this context, I respectfully agree with the observations of Le Pichon J. in the case of Leung Yiu v. Birkenhead Properties and Investments Ltd. [1998] 1 HKC 561 at 576 where she said this:

"Finality in litigation is of central importance to every litigant: it lies at the very foundation of our legal system. The rules designed to facilitate such finality are generally to be adhered to so that litigants will know where they stand. As this court held in The Adhiguna Meranti [1988] 1 HKLR 410, the purpose of the rules is to provide a timetable for litigation. Extensions of time would invariably defeat that purpose and should not be granted in the absence of special circumstances."

14. In the circumstances, the Defendant has failed to satisfy me that I ought to exercise my discretion in his favour. I dismiss the application with costs to the Plaintiff.