CO, ANA MARIE W. v. JOSE MARIO EMMANUEL VIALIA SALVADOR, ET., AL. AND OTHERS

CACV 573/2021

[2022] HKCA 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 573 OF 2021

(ON APPEAL FROM HCA NO 917 OF 2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is the plaintiff’s appeal against the decision of Recorder Rachel Lam SC (“the Recorder”) dated 25 November 2021 (with Reasons for Decision handed down on 7 December 2021)[1] dismissing her appeal out of time against the decision of Master Kot (“the Master”) dated 28 July 2020. The Master’s decision had the effect of striking out the Writ of Summons and the Statement of Claim filed in these proceedings by the plaintiff on 27 May 2019 insofar as they relate to the 2^nd and 3^rd defendants.

2.  The actual decision of the Recorder was to refuse to grant an extension of time for the plaintiff to appeal against the said decision of the Master.  The appeal against the Master’s decision was only lodged by the plaintiff on 27 September 2021, around 14 months late.  The Recorder decided not to grant the plaintiff an extension of time and dismissed the appeal accordingly (see [11]-[12], [18] of the Recorder’s Reasons for Decision). 

3.  This court has previously held that the refusal by a judge (including a recorder) of the Court of First Instance to grant an extension of time is an interlocutory decision, and that leave to appeal against such decision must be obtained under section 14AA of the High Court Ordinance, Cap 4 (“the Ordinance”) before an appeal can be brought against it.  See Leung So Hung Siem v Carson Wen & ors [2019] HKCA 94 at [7]-[12].  

4.  Order 59 rule 2B of the Rules of the High Court, Cap 4A (“the RHC”), provides inter alia that an application for leave to appeal against an interlocutory judgment or order of the court may only be made to the court in the first instance within 14 days from the date of the judgment or order, and that so far as is practicable, the application must be made to the judge or master against whose judgment or order leave to appeal is sought.

5.  In the present case, the plaintiff had not made any application for leave to appeal, whether in the Court of First Instance or in the Court of Appeal, pursuant to section 14AA of the Ordinance prior to filing her Notice of Appeal on 16 December 2021.  The present appeal is, on this basis alone, incompetent and liable to be struck out.  See Leung So Hung Siem at [13].

6.  On 13 January 2022, the Registrar of Civil Appeals directed the plaintiff to lodge written submissions setting out her grounds as to why her Notice of Appeal should not be struck out or dismissed.

7.  The plaintiff’s written submissions dated 8 February 2022, referred to section 16(1) of the Ordinance (which refers generally to the court’s equitable jurisdiction) and section 30 of the Limitation Ordinance, Cap 347 (which refers to the court’s general power to override time limits if it is equitable to do so).  There was no attempt by the plaintiff to elaborate on whether and, if so, how these provisions could apply in her favour in the circumstances of this case.  We are of the firm view that they are irrelevant and inapplicable to her position in the present case. 

8.  The plaintiff also referred to Order 59 rule 21(1) of the RHC, which provides a list of judgments and orders to which section 14AA(1) of the Ordinance does not apply and from which an appeal lies as of right.  The Recorder’s decision in the present case however, does not fall within this list of exceptions, and this provision is therefore of no assistance to the plaintiff.

Disposal

9.  For the above reasons, the present appeal is struck out for want of leave under section 14AA of the Ordinance.

10.  As the 2^nd and 3^rd defendants were not directed to lodge written submissions and were in any event not involved in the present appeal, we make no order as to costs.