XCHRX CHOI SZE FAI v. PRETTY FULL DEVELOPMENT LTD. AND OTHERS

HCA 10132/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10132 OF 1998

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REASONS FOR DECISION

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1. This is an application by the Defendants for leave to appeal against the orders of Master Ho out of time. The orders by Master Ho were made on 25 September 2000 ordering the Defendants to provide copies of certain documents to the Plaintiff and to answer certain requests for further and better particulars of their Defence.

2. When the matter came before Master Ho, Mr Chan, acting for the Defendants, indicated to Master Ho that he had no objection to the orders except he needed slightly more time to comply with the request for the documents and to answer the request for further and better particulars. Master Ho made the orders as sought and he gave the Defendants 21 days as requested by Mr Chan to comply with the orders.

3. It is now the Defendants' case that when Mr Chan made the concession as he did before Master Ho, he was under some misapprehension as to the attitude of his lay clients. The suggestion is that there was misunderstanding and the concession was made as a result of such misunderstanding.

4. I do not dispute that there could be misunderstanding between Mr Chan and his lay clients which resulted in Mr Chan making a concession that he should not have made and for the purpose of the present application, I am prepared to work on that basis.

5. But what is not in dispute was that the orders were made on 25 September 2000 and it was only many weeks later, on 8 November 2000 when the Defendants applied to this court for leave to appeal out of time.

6. There are two relevant matters that the court has to consider on an application of this nature. Firstly, there has to be an explanation for the concession made and an explanation for the delay. Secondly, and perhaps more importantly, the Defendants must demonstrate that there are merits in the appeal.

7. As I have said, in so far as the reasons for the concession that was made and perhaps for the delay, I am prepared to accept the explanation as set out in the Defendants' affirmations. But Miss Huen, on behalf of the Defendants, makes no submission on the question of the merits of the appeal. As I have observed in the course of her submission, the merits of the appeal is perhaps more important than an explanation for the delay or for making the concession. If there are good merits in the Defendants' appeal, even in the absence of an explanation for the concession made and/or for the delay, the court may still be persuaded to grant the Defendants leave to appeal out of time.

8. While procedural compliance is very often important, in an adversarial system, the merits of any case is, in my view, far more important than procedural restraint.

9. There is no suggestion at all as to why the Defendants should not provide the documents in question to the Plaintiff. There is no explanation why the request for further and better particulars of the defence should not be answered.

10. That being the case, there is no basis upon which this court can exercise the discretion sought by the Defendants for an extension of time for the Defendants to appeal against the orders of Master Ho. The application has to be refused and I so order.

11. The Defendants have to bear the costs of today to be taxed if not agreed.