LAU CHI CHING KAREN alias LAU LAI YIN v. OCBC WING HANG BANK LTD (formerly known as WING HANG BANK LTD)

HCMP2517/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2517 OF 2014

(ON AN INTENDED APPEAL FROM HCA NO. 103 OF 2014)

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JUDGMENT

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1.  This is the application of the plaintiff for an extension of time to appeal the decision of Deputy High Court Judge Yee (“the Judge”) of 15 August 2014, ordering the striking out of the Amended Statement of Claim in HCA 103 of 2014 (“the Action”) and the dismissal of the Action with costs.

2.  In support of her application, the plaintiff has filed two affirmations on 13 October 2014 and 24 November 2014.  The defendant opposes the application and filed an affirmation in opposition on 11 November 2014.

HCA 103 of 2014

3.  On 16 January 2014, the plaintiff issued the writ in the Action against the defendant with a statement of claim attached to it.  On 10 February 2014, the plaintiff amended the statement of claim pursuant to Order 20 rule 1, The Rules of the High Court (Cap.4A), which permits one amendment to the writ without the leave of the court before the pleadings are deemed to be closed.  Upon the defendant’s request dated 18 February 2014, the plaintiff filed further and better particulars of the Amended Statement of Claim on 7 March 2014.

4.  By summons dated 23 April 2014, the defendant applied to strike out the Amended Statement of Claim and to dismiss the action pursuant to Order 18 rule 19, The Rules of the High Court.  By the decision dated 15 August 2014, the Judge granted the application, struck out the Amended Statement of Claim, together with the further and better particulars, on the basis that it discloses no reasonable cause of action and dismissed the action.  The Judge also made a costs order nisi against the plaintiff.

5.  The plaintiff applied by summons dated 28 August 2014 to vary the costs order nisi. On 30 September 2014, the Judge handed down his decision refusing the application to vary. 

6.  On the same day, the plaintiff served on the defendant a notice of appeal in respect of the decision dated 15 August 2014, and also lodged a copy of the notice of appeal in the court.  This forms the subject matter of CACV 200 of 2014 (“the Appeal”).

7.  On 7 October 2014, Kwan JA directed the plaintiff to apply for an extension of time to appeal and that before such extension is granted, no further proceedings in the Appeal shall be allowed.  Consequently the plaintiff issued the present application on 13 October 2014.

The delay

8.  Generally speaking, when deciding whether to extend the time for appealing, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice that may occasioned to the respondent if extension of time is granted.

9.  The delay in this case is 18 days, which, although is not minimal, is not substantial. The plaintiff mentioned in her affirmation that she was busy with her application to vary the costs order nisi, that she had consulted free legal advice and that the Judge said at the hearing of her application to vary the costs order nisi that he could not re-open the case.  At the hearing before us, the plaintiff further explained that she was confused and erroneously thought that by applying to vary the costs order nisi, she could also change the result of the Judge’s decision.  We accept that as the plaintiff was not legally represented, it is possible that she was mistaken about the procedures.  Nevertheless, the most important consideration is the prospect of the plaintiff’s intended appeal, to which we now turn.

The prospect of the intended appeal

10.  The Judge struck out the Amended Statement of Claim (together with the Further and Better Particulars) on the basis that it discloses no reasonable cause of action.  In paragraphs 5 to 13 of the Decision, he set out his reasons thus:

“5. Madam Lau’s first complaint is contained in the first two paragraphs. In the first paragraph, Madam Lau complains that one senior executive officer of the Bank improperly lobbied her to purchase a residential property by the use of her fund originally earmarked for her education and her business purposes. In the second paragraph, she goes on to complain that her life in all respects including her marriage and her well-being became miserable after the purchase of her property.

6. In her answer to the Bank’s request for further and better particulars, Madam Lau gives more particulars about the foregoing complaint. The senior executive officer of the Bank is identified to be one Mr Ho Chi Wai (“CW Ho”) and the property she purchased after CW Ho had improperly lobbied her was Flat B, 20/F., 118 Broadway, Mei Foo Sun Chuen, Kowloon (“the Flat”). The sale took place in 1997. She alleges that she did not like the flat, which was old and without clubhouse facilities.

7. However, according to Madam Lau, CW Ho said to her that the Flat had a good location and it was situated just above the MTR station. He further intimated to her that he himself grew up in that area and his parents still resided there. He explained to Madam Lau that the selling price of the Flat was always below the market price as it was torn and not well maintained.

8. Madam Lau also gives examples of such business that she might have otherwise carried on with her fund but for the purchase of the Flat. She lastly discloses that she has worked as an estate agent herself.

9. In my judgment, Madam Lau’s complaint cannot be translated into any identifiable cause of action by any stretch of the imagination. The remarks allegedly made by the officer of the Bank are apparently innocuous and in any event Madam Lau makes no allegation about the nature of such remarks. I fail to see how they can give rise to any actionable claim.

10. In his written submission, Mr Tsang relied on the Limitation Ordinance and submitted that Madam Lau’s claim is time barred since the alleged improper lobbying must have taken place before the purchase of the Flat in 1997. At the hearing, Mr Tsang accepts that Madam Lau’s claim cannot be properly characterized and hence the Limitation Ordinance does not assist the Bank.

11. Madam Lau’s second compliant in the third to sixth paragraphs is about the Bank’s alleged use of her motto “Think Positive” and her hedonistic lifestyle without her consent. My understanding of her complaint is that the Bank was inspired by her motto and lifestyle in many of its marketing projects since 1993 such as its car loan, credit card and mortgage businesses. She feels that the Bank’s success in such projects was attained at her expense.

12. Doing the best he can, Mr Tsang submits that the closest legal complaint that can be made out of these allegations is copyright infringement. However, he points out that there can be no copyright subsisting in her ideas and/or life attitude. He is, of course, right as a matter of law. I in fact cannot make any sense out of this complaint and I do not think there can be a copyright issue at all. I am of the view that it cannot be actionable.

13. Accordingly, I am of the view that it is plain and obvious that her pleading discloses no reasonable cause of action and it must, together with all the particulars given subsequently, fall to be struck out.

11.  The Judge however did not consider that the claim could also be struck out as a plain and obvious case of abuse of process. 

12.  Having read the Amended Statement of Claim and the Further and Better Particulars, we are of the view that the Judge is clearly correct in concluding that the pleading discloses no reasonable cause of action.

13.  In the notice of appeal (paragraph 2), the plaintiff relied as her cause of action against the defendant, a verbal contract which she claimed was made between Mr Ho Chi Wai and herself on 26 February 1996 and in these terms: “You (Lau Lai Yin) good, We (Wing Hang Bank Ltd) good from this moment, our relations of mutual benefit start in, Please remember that there is no any (emotional) constrains, but I will watch on you.”  It is also said in the notice of appeal that Mr Ho represented the bank and “presented a piece of fine gold bar to the plaintiff as solemn promise”.    

14.  We note that this alleged verbal contract had not been pleaded, despite the fact that the Statement of Claim had been amended, and that the plaintiff had made no mention of it in resisting the striking out application before the Judge.  She raised this for the first time in her affirmation filed in support of her application to vary the costs order nisi.  There is no explanation from the plaintiff as to why this allegation was not raised before.  The veracity of this new allegation is therefore doubtful.

15.  More importantly, we do not think this alleged verbal contract, even if accepted, could have salvaged the plaintiff’s claim for a number of reasons.  First, the plaintiff has not demonstrated any consideration moving from her to support this alleged promise.  In her oral submissions, the plaintiff argued that consideration was provided by the words “你好, 我好” (you good, I good) allegedly said by Mr Ho.  We cannot agree such words can amount to valid consideration in law.  Without consideration, the alleged promise cannot amount in law to a binding contract. 

16.  Second, the alleged promise is imprecise, vague and cannot form the basis of a legally binding contract.  The plaintiff argued in her oral submissions that it was a solemn promise made after careful deliberation (深思熟慮) and was accompanied by the giving of token of pledge (信物).  In our view, even taking into account these assertions, the terms of what was allegedly said or promised by Mr Ho remain imprecise and vague and cannot amount to a legally binding contract.

17.  Third, the plaintiff has not indicated in what way this alleged verbal contract was breached and when it was breached.  The plaintiff said in her oral submissions that the breach occurred when the defendant applied to strike out her claim. However, this will mean there was no breach, thus no complete cause of action, when the plaintiff commenced her action against the defendant.  This will provide an additional reason for striking out the plaintiff’s claim. 

18.  Fourth, it has not been shown how the breach of this verbal contract, assuming there is one, will make the defendant liable to the plaintiff.  Even if Mr Ho is an employee of the defendant, that in itself and without more, will not make the defendant liable for breach of contract by Mr Ho, assuming this can be proved. In short, the essential prerequisites for a cause of action in contract are lacking. 

19.  The plaintiff’s intended appeal against the decision to strike out the Amended Statement of Claim together with the Further and Better Particulars is unarguable.  Given the lack of merits of the intended appeal, the extension of time should not be granted as it would be futile to do so.  We need not consider the issue of prejudice to the defendant.

Conclusion on the application

20.  For the above reasons, the plaintiff’s application to extend the time for appealing against the decision of 15 August 2014 is dismissed.

Costs

21.  Applying the usual rule of costs follow event, the plaintiff having failed in her application, will have to pay to the defendant the costs of this application.  The defendant asked for the costs to be summarily assessed on indemnity basis on the ground that the application is wholly devoid of merits.  While we accept that this application and the plaintiff’s intended appeal are unarguable, we do not consider this is an appropriate case to order indemnity costs.  The defendant’s costs will be assessed on the usual party-and-party basis.

22.  As to the amount of the defendant’s costs, we consider that this is a simple application.  Although there are voluminous exhibits to the plaintiff’s affirmations, many of the pages are reproductions of the defendant’s advertising materials and publications.  We also note that the defendant’s handling solicitor is a very senior and experienced practitioner and has been involved in the action below.  We are therefore of the view that, on a party-and-party basis, the time spent by the defendant’s solicitor on the application should be reduced substantially. Taking a broad-brush approach, we assess the costs of the defendant at HK$ 45,000.

Orders

23.  Accordingly, we make the following orders:

(1) The plaintiff’s application to extend the time for appealing against the decision of 15 August 2014 is dismissed.

(2) The plaintiff shall pay the defendant the costs of the application summarily assessed at HK$45,000.