XCHRX K. v. K.

HCMP 1461/87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1461 OF 1987

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D E C I S I O N

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1. This is an application by the Defendant for leave to appeal against an order for costs made against her on 16 September 1997. That order was made pursuant to an application taken out by her former husband in March 1997 to vary the maintenance order made earlier. That application was taken out at the same time as an application to send the child of the marriage out of the jurisdiction to attend school in Australia.

2. The application for variation of maintenance was adjourned as the more urgent matter at that point in time was to consider the application relating to the child's schooling.

3. The variation application was restored for hearing on 16 June 1997. The Defendant was absent and the court received, on that occasion, a fax from solicitors in Australia to the effect that the Defendant was in Australia. The court gave directions for the filing of affidavits and adjourned the application to 14 July. Prior to the July hearing, the court received a written application from the Defendant asking for one month's adjournment in order for her to put in an affidavit in opposition. At the July hearing, time for the Defendant to file an affidavit in opposition was extended to mid August and further directions were given.

4. The matter finally came before the court on 16 September. The Defendant was again absent and notwithstanding the many opportunities given by the court, the Defendant did not really address the issues raised in the Plaintiff's application. These matters are summarised in greater detail in the Reasons handed down on 22 September 1997 where the reasons for making the costs order against the Defendant are also set out. A copy of the Reasons was sent to the Defendant by the court on 22 September 1997. A copy of the order that was drawn up and sealed was served on the Defendant by the Plaintiff's solicitors by post to the same address to which the court had sent a copy of the Reasons.

5. The Defendant says she did receive the documents sent by the court and knew, therefore, of the costs order made against her, but that she never received any copy of the sealed order served by the Plaintiff. For present purposes, this is not a material point since, on any account, the Defendant accepts that she knew of the costs order by the very end of September, or at least early October 1997.

6. Nothing was done to seek leave to extend the time for appealing against the costs order until 19 September 1998, almost a year after the order was made. The Defendant has put in extensive written submissions, but it is difficult to discern from those submissions the reasons why it has taken her a year to make the application. It would appear from the affidavit filed on behalf of the Plaintiff that what had prompted this somewhat belated application for leave was the fact that the Plaintiff has been taking steps to have his costs taxed.

7. In considering whether leave should be granted, the court has to be satisfied that there were valid reasons for the delay. In the present case, I can see none. Leaving aside the prospects of success of any appeal, which I would regard as extremely low, there is no good reason for the court to exercise its discretion to allow an appeal out of time. The rules of court which impose time-tables are designed in part to achieve finality in litigation so that parties know where they stand. To allow an appeal to be brought now, almost a year out of time would require good reason for otherwise it would lead to a great deal of uncertainty which cannot be in the interest of the proper administration of justice.

8. For these reasons, the application for leave to appeal out of time is dismissed.