NHD SYSTEMS (ASIA) LTD (IN LIQUIDATION) v. LI XIAO YI

CACV 80/2025, [2025] HKCA 365

On appeal from [2025] HKCFI 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 80 OF 2025

(ON APPEAL FROM HCA NO 1492 OF 2018)

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BETWEEN

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D E C I S I O N

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1.  On 18 February 2025, the plaintiff filed a notice of appeal purportedly against the judgment of Harris J dated 21 January 2025. The judgment concerned was made on 17 October 2024 (“Judgment”), which adjudicated that the plaintiff’s claim against the defendant be dismissed and ordered that costs be reserved. Reasons for the Judgment were handed down on 21 January 2025[1].

2.  Pursuant to Order 59 rule 4(1(c) of the Rules of the High Court, the notice of appeal must be served within 28 days from the date of the Judgment. As the notice of appeal was filed after 28 days from the date of the Judgment, the Registrar of Civil Appeals directed that the solicitors for the plaintiff do address the court as to why an extension of time to appeal against the Judgment should not be sought from the court below first.

3.  Mr George Chu, counsel for the plaintiff, contended that:

(1) The part concerning costs is not yet determined by the judge, hence naturally time for appealing has not yet started to run;

(2) The judge has not yet been functus officio, the doctrine which enables an effective appeal to be brought;

(3) In the event if extension of time is required, it would be expeditious and costs-effective for the Court of Appeal to grant extension of time forthwith without requiring the plaintiff to seek leave from the court below first.

4.  This issue has been referred to this court for determination.

5.  Firstly, the fact that the costs order has been reserved by the judge would not make the Judgment not yet appealable by itself. There is no basis to support the contention that the time for appealing only starts to run after the costs issue has been determined when the Judgment has already been made.

6.  Secondly, after the Civil Justice Reform, Order 59 rule 4(1)(c) of the Rules of the High Court was amended to its present form which provides that the time for appealing should be reckoned from the date of the judgment or order, not the date of its sealing or perfection. Mr Chu’s reliance on the doctrine of functus officio is a non-starter.

7.  The notice of appeal was clearly filed out of time in the present case. The plaintiff ought to seek extension of time for the intended appeal. Pursuant to Order 59 rule 14(4) of the Rules of the High Court, such application shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below.

8.  As pointed out by the defendant’s solicitors, the plaintiff has failed to demonstrate any special circumstances which make it impossible or impracticable to apply to the court below. Expeditiousness and costs-effectiveness aside, without any special circumstances, are not sufficient justification to circumvent the requirement of applying for extension of time from the court below first.

9.  The determination of this court on the above issue would not be necessary should the plaintiff duly follow the rules of the court and its legal representatives understand the relevant rules correctly. It is therefore appropriate to make a costs order nisi that the defendant’s costs incurred in relation to the determination whether or not extension of time is required for the intended appeal be paid by the plaintiff in any event.

10.  For the above reasons, it is ordered that:

(1) These proceedings be stayed pending the Court of First Instance’s determination of the application for extension of time to appeal to be filed by the plaintiff (if any);

(2) Unless the plaintiff files with the Court of First Instance and serves on the defendant a summons for extension of time to appeal against the Judgment by 4 pm on 29 April 2025, its notice of appeal filed herein be struck out immediately without further notice; and

(3) The defendant’s costs incurred in relation to the issue determined herein be paid by the plaintiff in any event. Unless an application to vary this costs order nisi is made by summons within 14 days after the date of this decision, the costs order will become absolute upon the expiry of that period.