HUNG FAT CLEANING TRANSPORTATION CO LTD AND ANOTHER v. TELFORD ENVIRONMENTAL DEVELOPMENT LTD AND OTHERS

HCA 2387/2019 and HCA 820/2021 (Consolidated)

[2026] HKCFI 1241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2387 OF 2019

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(By Original Action)

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 820 OF 2021

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(By Counterclaim)

(Consolidated pursuant to the Order of Master Phoebe Man dated 28 July 2021)

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D E C I S I O N

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Introduction

1.  On 25 July 2025, I handed down a Judgment after an 8-day trial involving three actions (HCA 2387/2019 and HCA 820/2021 were consolidated and ordered to be heard together with HCA 973/2020). There were a total of 7 parties, some allegations crossed over between the actions, and a number of causes of action were pleaded against various parties in both actions. Three sets of counsel were involved, for the plaintiffs, the 1^st and 2^nd defendants, and the 3^rd defendant respectively in HCA 2387/2019.

2.  As shown in the Judgment, my findings of fact were not one way, which obviously impacted upon the relief sought.

3.  In view of the above, I directed at §135 of the Judgment that “counsel agree on the terms of an order based on this Judgment within 42 days, such order to be approved by myself before sealing”.

4.  From the language of the Judgment, it should be clear that it was final. The Judgment was a decision obtained in an action (§59/4/2, Hong Kong Civil Practice 2026) and there was no question of any decision to be made in any further order. There was no order nisi whether explicitly (as in the first instance case of Angela Ho & Associates (a firm) v Kwong Ka Yin t/a Phyllis KY Kwong & Associates HCMP 1794/2014, 2 Dec 2014) or implicitly. Counsel were simply directed to provide an agreed draft order (which technically should be entitled as “Judgment”), a 42-day period being given as the August court vacation would not have been reckoned in the computation of the period for serving a notice of appeal (s.31 High Court Ordinance, Cap. 4). The direction that I approve the draft myself before sealing was to assist the court clerical staff.  

5.  Counsel were however not able to agree on the draft. On 5 September 2025 (being 42 days from the date of the Judgment), the parties sent a joint letter to the court containing 9 pages of proposed orders with explanations for their respective proposals.

6.  When the fact that there was no agreed draft was brought to my attention, on 10 October 2025, I prepared the Judgment order to be sealed. Unfortunately, for reasons unknown, the letter from the court informing the parties of this was not sent until 28 October 2025, and was apparently not received by them until 30 October 2025.

7.  The plaintiffs in HCA 2387/2019 wish to lodge an appeal. A dispute arose between them and the 1^st and 2^nd defendants (the 3^rd defendant having consented to extension of time for appealing) as to when time begins to run for the purposes of Order 59 rule 4(1)(c) Rules of the High Court. This rule provides that a notice of appeal must be served within 28 days from the date of the judgment, order or decision concerned.

8.1.  The plaintiffs’ position is that time did not begin to run until:-

a.  10 October 2025 at the earliest as that was the date when the court prepared the Judgment order as per the letter dated 28 October 2025; or

b.  28 October 2025 when the court’s letter was sent to the parties; or even

c.  30 October 2025 when they received that letter.

8.2.  The position of the 1^st and 2^nd defendants is that after taking the August court vacation into account, time for appealing expired on 22 September 2025.

9.  On 19 November 2025, the plaintiffs’ solicitor wrote to the defendants’ respective solicitors inviting them to consent to an extension of time for serving the notice of appeal. The 1^st and 2^nd defendants did not agree as they considered that time began to run from 25 July 2025 when the Judgment was handed down. The 3^rd defendant was however agreeable to an extension of time.

10.  On 25 November 2025, the plaintiffs issued a summons for time to serve their notice of appeal. This was supported by an affirmation of their solicitor. A consent summons of the same day for extension of time was signed on behalf of the 3^rd defendant.

11.  On 4 December 2025, I gave directions for written submissions to be provided by the plaintiffs and the 1^st and 2^nd defendants. They were duly provided and I have considered them.

12.  The first issue is what was the “date of the judgment, order or decision concerned” for the purpose of Order 59 rule 4(1)(c).  

13.  Both sets of submissions relied on the Judgment of the Court of Appeal in Angela Ho [2015] HKC 241. In that case, in December 2014 the judge at first instance did not make a final order in respect of the plaintiff’s claim, but made what he described as an “order nisi” dealing with both the substantive relief to be granted and the costs of the action. Both parties sought to vary the “order nisi” both as to the substantive relief and as to costs. The judge held a further hearing in January 2015 and varied that part of the order as to the substantive relief, but not costs. A dispute arose as to whether the time for appealing ran from December or January.

14.  The Court of Appeal held (§9):-

“... We do not think that the Judgment of 2 December 2014 can be said to have resulted in a final resolution of the plaintiff’s claim. The ‘order nisi’ was no more than the Deputy Judge’s suggestion as to a possible form of the order to be made, which was put forward for the parties’ consideration. Although the Deputy Judge described it as an ‘order nisi’, it was not really an order at all. The actual order to be made was left open until after further argument had taken place, unless the parties were able to agree on the terms of the order, or accepted the suggested order put forward by the Deputy Judge. The position was thus very similar to one in which the Deputy Judge had adjourned the proceedings for further argument as to the terms of the order before finally disposing of the proceedings. It was not, as sometimes happens, a case in which a judge resolves proceedings without spelling out the precise terms of the order to be made – in such a case, the parties are left to work out what the judge had in mind, which may result in competing forms of the orders being placed before the judge for him to decide which best reflects the order he has made. In that situation, the order is made when the judgment is pronounced, and the subsequent discussions or disputes as to its terms are as to what order has already been made. By contrast here, it was expressly envisaged that the ‘order nisi’ was not the final order, but might be subject to revision by the judge”. (Emphasis added)

15.  The italicized passage above describes the situation in the present case.  At §135 of the Judgment, I directed counsel to agree on the form of order reflecting the orders in the Judgment. The correct understanding is as articulated by counsel for the 1^st and 2^nd defendants in §8 of their submissions, i.e. “the direction at Judgment §135 is an administrative mechanism for settling the precise form of an order based on findings and conclusions already made in the Judgment, as opposed to a reservation of the substantive disposition of the proceedings for future determination”.  

16.  As mentioned earlier, as counsel were unable to agree a draft, I prepared the Judgment order on 10 October 2025. It has not been suggested that it varied the Judgment handed down on 25 July 2025 in any way. Thus, for the purpose of Order 59 rule 4(1)(c), clearly the “date of the judgment, order or decision concerned” is 25 July 2025.

17.  That being the case, the period for serving a notice of appeal, taking into account the August court vacation under s.31 High Court Ordinance, expired on 22 September 2025.

18.  The next issue is whether the court should exercise its discretion to extend the time for serving the notice of appeal. The plaintiffs’ solicitors wrote to the other parties for an extension of time on 19 November 2025, and issued the summons on 25 November 2025. The affirmation in support relies mainly on the fact that it was only on 30 October 2025 that the letter from the court was received.

19.  It is well-established that in deciding whether to extend time to appeal, the court would consider the length of the delay, the reasons for delay, the chances of the appeal succeeding, and any prejudice to the other parties.

20.  In this case, the length of delay and the reasons for delay are intertwined.

21.  The delay in serving the notice of appeal (22 September 2025 to 25 November 2025) is about two months. That is a not insubstantial period, but I take into account the fact that the plaintiffs were not sitting on their hands. As per the court’s direction, they had submitted proposed orders in a joint letter on 5 September 2025. It cannot be said that the orders they proposed were done mala fides with a view to delaying the appeal process. What caused the subsequent delay was their misunderstanding of the direction in §135 (which persisted in the submissions for this summons). Their misunderstanding caused them to wait upon the court for the Judgment order which, as events transpired, regrettably took a longer than usual time to be communicated to the parties. This delay in communication took up nearly three weeks. In the rather unusual circumstances of this case, I consider that the reasons for the delay were understandable.

22.  In light of the above, having read the draft grounds of appeal, I take the view that the intended appeal has reached the threshold of not being hopeless.

23.  There is no real prejudice to the 1^st and 2^nd defendants that I can see. Accordingly, taking all the circumstances and the overall justice into account, I would exercise my discretion to extend time.

24.  As for costs, I consider that as the delay was caused by the plaintiffs’ misunderstanding of the direction in §135 notwithstanding the explanation of this type of order in the Court of Appeal’s Judgment in Angela Ho, the correct order would be for the plaintiffs to bear the costs of the 1^st and 2^nd defendants, to be summarily assessed.      

25.  Accordingly, I would order in respect of the application by summons filed on 25 November 2025 that:-

(1)  the time for the plaintiffs to serve their notice of appeal against the Judgment made on 25 July 2025 be extended to within 7 days of the date of this Decision;

(2)  the costs of the application be paid by the plaintiffs to the 1^st and 2^nd defendants, who shall have leave to file a statement of costs for summary assessment within 7 days of the date of this Decision, and the plaintiffs shall have leave to file any objections within 7 days thereafter. A summary assessment will then be made on paper.