TANG SING YU AND OTHERS v. TANG TAT KWONG AND OTHERS

CACV361/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL No.361  OF 2004

(ON APPEAL FROM HCMP1466 of 1999)

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DECISION

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Hon. Yuen JA:

1.  This is an application by the 1^st and 2^nd named 1^st Defendants ("the appellants") to extend time for notifying the Plaintiffs ("the respondents") of the setting down of an appeal from an order of Tang J. (now Tang JA) made on 8 October 2004 entering judgment for the respondents.

2.  The order was sealed on the same day (8 October 2004). 

3.      A Notice of Appeal was served (in time) on the respondents’ solicitors by solicitors for the appellants on 2 December 2004. 

4.      On the following day 3 December 2004, the requisite documents were lodged and the requisite fee was paid by the appellants’ solicitors so as to cause the appeal to be set down under Order 59 rule 5(1): Hong Kong Civil Procedure 2006, §59/5/17, China Weal Ltd v Lau Sau-wah [2001] 1 HKLRD 351. 

5.      Under Order 59 rule 5(4), the appellants’ solicitors should have notified the respondents’ solicitors of the setting down within 4 days, i.e. by 8 December 2004 (5 December 2004 being a Sunday and therefore excluded from the computation of 4 days: §59/5/17).

6.      That was not done due to an error on the part of a clerk of the appellants’ solicitors. 

7.      On 17 December 2004, the respondents’ solicitors asked the appellants’ solicitors whether the appeal had been set down.

8.      The next day (18 December 2004), the appellants’ solicitors wrote in reply saying "the Notice of Appeal has been filed in Court on 3^rd December 2004".  Although that did not say in as many words that the appeal had been set down, there is no set form for a notification of setting down and it is normal practice to do this by letter.  Indeed in China Weal Ltd v Lau Sau-wah, Keith JA said that the notice may even be given orally.  Since the letter of 18 December 2004 was in reply to an inquiry whether the appeal had been set down, I consider that was sufficient notification of setting down, albeit 10 days late (8 December to 18 December 2004).  The fact that this would have been understood to be notification of the setting down of the appeal is also supported by the fact that the respondents’ solicitors did not make any further enquiries along the same lines as their letter of 17 December 2004.

9.      Apparently, nearly a year later in November 2005, when the appellants’ solicitors sought to fix a date for hearing, the Appeals Registry declined to do so because of the late notification of setting down.  I am not aware that the notification of setting down had to be filed with the Appeals Registry as there are no rules so providing.  In any event, on 22 November 2005, the letter of 18 December 2004 had been shown by the appellants’ solicitors to the Appeals Registry and the Registry should then have been satisfied that the respondents had been notified of the setting down of the appeal the year before.

10.      Be that as it may, by a letter dated 25 November 2005 the appellants’ solicitors asked the respondents’ solicitors to "consent to our application to file the Notification of setting down out of time".  That consent was not forthcoming, hence this application.

11.      I have no doubt in the present case that the court should order that the letter of 18 December 2004 be deemed to be valid notification of setting down notwithstanding that the time limited under Order 59 rule 5(4) had expired.  The Notice of Appeal was served in time, the documents required for setting down were lodged in Court well within time, and the delay in notification is relatively minor (in fact, the deadline for notification would have been as late as 15 December 2004 if the appellants had taken advantage of maximum time limits for setting down and notification).  The respondents have not suggested that they have suffered any prejudice.  Mr George Lam counsel for the respondents accepts that there were no merits in the respondents’ objection. 

12.      It is clear that the court’s discretion would only be properly exercised in favour of making the order I have referred to above.  I can only say that I am surprised that this summons had been opposed until the parties appeared this morning.

(After argument on costs)

13.      I would order that a gross sum of $800 be paid by the appellants to the respondents as their costs of considering this summons and the supporting affirmation (which should not have taken the respondents’ solicitors more than 10 minutes) but the costs of the hearing today should be to the appellants in any event.  The respondents’ solicitors have also given an undertaking that they would not charge their clients for their costs (including counsel’s fees) of today’s hearing.