PIONEER VENTURE INTERNATIONAL LTD v. LAM CHEUK YUI AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11848 OF 1997

-----------------

-----------------

JUDGMENT

-----------------

1. This is an application by the two Defendants for leave to appeal out of time from the Master's order made in June of 1998 and if leave is granted to appeal against the Order of the Master giving summary judgment against the Defendants.

2. What happened is this: the Plaintiff is the purchaser of a property owned by the Defendants. The parties entered into a Sale and Purchase Agreement. Deposit paid was $1.3m being 10% of the purchase price. The Plaintiff objected to a defect in the title, namely an illegal structure on the premises. The Plaintiff therefore sought by this action the return of the deposit. The summary judgment application was taken out by the Plaintiff against the Defendants for the payment of $1.3 million deposit. In the summary judgment application, a large number of affidavits were filed. The matter came before the Master in June 1998 and the Master granted summary judgment and ordered payment of $1.3 million with leave to defend as to the balance of the claim, namely the damages and also made consequential order. This was in June 1998.

3. Two matters followed after the making of this Order. One was the execution on the Order of $1.3 million. Because the Defendants failed to pay that $1.3 million so charging order application was made and charging order was in fact obtained and as I see from the chronology, in fact the costs of the application had been paid by the Defendants. The other matter that was as a consequence of the Order, was the repeated applications by the Defendants pursuant to that Order to extend time for filing of witness statements. So it is quite clear that the Order had been affirmed by the Defendants. There was no appeal from that Order. The time limited for appeal being five days and then out of the blue in April of this year, a Notice of Appeal was put in by the Defendants to appeal the Order of June 1998 order and time fixed for the hearing of the appeal was June 1999.

4. On the hearing of this application today, I directed that Mr. Kerr for the Defendants appellants to address me first on the question of leave to appeal out of time and the practice relating to the discretion of the court on granting leave to appeal out of time. I indicated that I did not wish to hear the merits of the appeal itself until after I had given leave to appeal out of time. After having heard Mr. Kerr on the matter of leave to appeal out of time, I did not call upon Ms. Lan.

5. It seems to me that there are only four aspects that one needs to consider on the matter of giving leave to appeal out of time.

6. First the length of time. The time elapsed between the Order and the application is 10 months, or a full year from the time the Order 14 Order to this hearing. By any measure, it is an extremely long period of time, specially taking into consideration that for interlocutory appeals of this kind, the period under the rules is a short time of 5 days only. No indication whatsoever had been given that the Defendants intended to appeal. So that is, even if not fatal to the Defendants' case certainly of the gravest weight to this court.

7. Second factor that is important is whether any acceptable and proper explanation had been given to the court for the Defendants' very long delay. I have seen their affidavit evidence and I have also seen the skeleton arguments of both sides. I agree with everything said by Ms. Lan of the Plaintiff that there is simply no adequate excuse given for this long delay. The forgetfulness of a party of the existence of a witness is not an excuse. The fact is that that all these materials in fact could have been obtained, ought to have been obtained and in fact most of them had been done, because on Order 14 application evidence is adduced to the court by way of affidavit hearsay evidence. I really see no justification for granting leave to appeal out of time in the circumstances of this case. So I do not accept that there has been an adequate and proper reason given for the long delay.

8. Thirdly, the affirmation of the Order by the steps taken by Defendants seems to me fatal because it is totally inconsistent with someone appealing. You cannot have it both ways. In fact the Defendants should be estopped from appeal.

9. Finally, there is a question of prejudice. The Plaintiff acting upon the Order, had taken a few steps for the execution of the order and had also in fact acted on the basis in relation to winding-up against the Plaintiff that the Order was good. I do not think in these circumstances the Court can come to any decision but to reject the application for leave to appeal out of time. The application and the summons of Notice of Appeal is dismissed with costs which I will now assess by way of gross sum assessment.

Determination on Gross Sum Assessment

10. Having heard counsel on both sides and having been handed up the document which summarised the costs incurred by the Plaintiff in respect of work done by solicitors and done by counsel, I am of the view that of the total sum claimed of $81,250.00, only a small discount should be given. Having regard to the whole circumstances of the case, I take the view that, in essence, the solicitors' costs (the solicitor involved being of two-years call) put at the hourly rate of $2,500.00 and counsel's costs at the hourly rate of $2,500.00 are perfectly reasonable. I also take the view that brief fee and in fact the whole document is on the whole reasonable. My determination is that the gross sum assessment be the figure of $75,000.00. That sum of $75,000.00 is of course to be paid forthwith and immediately.