CHAN YUK LUN v. CHAN YING CHIT

[English Translation — 英譯本]

HCMP 1536/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1536 OF 2014

(ON AN INTENDED APPEAL FROM HCA 1628/2012)

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JUDGMENT

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

1. The 2^nd defendant commenced the present proceedings on 24 June 2014 to apply to the Court of Appeal for leave to appeal out of time against the decisions of Chung J (“the trial judge”) made on 11 March and 27 May 2013. The 2^nd defendant made the 1^st defendant the respondent of these proceedings but did not make the plaintiff a party or serve the summons on him.

2. The 1^st defendant objects to the application of the 2^nd defendant and has submitted a written submission.

3. Having read the documents, this court finds it appropriate to determine the application without a hearing on the basis of written submissions only pursuant to Order 59, [rule] 2A(5)(a) of the Rules of the High Court, Cap 4A, Laws of Hong Kong.

HCA 1628/2012

4. The plaintiff is the 1^st defendant’s brother and the 2^nd defendant’s father.

5. The action HCA 1628/2012 was commenced on 7 September 2012.  It is alleged in the statement of claim of the case that the father of the plaintiff and the 1^st defendant financed the purchase of Unit D, 7/F, Chesterfield Mansion, 11 Kingston Street, Causeway Bay (“Unit 7D”) in 1967 with his wife (ie the mother the plaintiff and the 1^st defendant) registered as the title owner in the capacity of a trustee.

6. It is also stated in the statement of claim that the plaintiff is a lawful occupier, beneficiary of title and owner of Unit 7D.  However, in 2012, without the plaintiff’s knowledge and agreement, the 1^st defendant registered by deed and became the title owner of Unit 7D, in breach of the trust and infringed the plaintiff’s various interests in land.  Therefore the plaintiff brought an action against the 1^st defendant to recover the title of Unit 7D and claim for damages.

7. It is also stated in the statement of claim: “[The 2^nd defendant] is obliged to carry out proper management and make arrangement for the ancestral property, and put in effort to the succession of the family.  If he refuses to undertake the aforesaid obligation, he is deemed irresponsible, and [he] shall be liable for his act and become one of the defendants in this action, and hence he is made the first party and proposed defendant in this action.”

8. On 28 December 2012, the 2^nd defendant took out a summons to apply for leave to join as the 2^nd plaintiff in HCA 1628/2012 and to file in a statement of claim in respect of that case.  The 2^nd defendant in his affidavit in support of the application claimed that he was the ultimate title owner in charge of Unit 7D and that he applied for joinder as the 2^nd plaintiff so as to fight for the inherent interests the plaintiff and he himself had in Unit 7D.

9. On 9 January 2013, Master Jack Wong of the High Court dismissed the 2^nd defendant’s summons.

10. The 2^nd defendant appealed against the decision made by the master.  The appeal was dismissed by the trial judge on 7 March 2013.  On 27 May 2013, the trial judge refused to grant the 2^nd defendant leave to appeal to the Court of Appeal.

The trial judge’s decision

11. The trial judge dismissed the 2^nd defendant’s appeal for two reasons.  First, the 2^nd defendant could not be both defendant and plaintiff at the same time in the same claim.  Second, he had no reasonable cause of action, and no reasonable right of action or locus standi.

The 2nd defendant’s grounds of appeal

12. The 2^nd defendant in his affidavit filed on 24 June 2014 in support of this application raised the following four points:

(1) The 2^nd defendant has found the evidence which can show that he has a reasonable cause of action and reasonable right of action or locus standi in HCA 1628/2012.

(2) The trial judge has erred in paragraphs 5 and 8 of his [reasons] for decision dated 11 March 2013.

(3) The plaintiff fell and suffered injury on 28 February 2013.  The 2^nd defendant suspected that someone had deliberately injured the plaintiff as a warning to the 2^nd defendant.  Consequently, the 2^nd defendant failed to do his best in making submissions before the trial judge at the hearing, resulting in the court giving a judgment unfavourable to him.

(4) The 1^st defendant has colluded with another person to do harm to the 2^nd defendant.

Reasons for decision of this court

13. The decision against which the 2^nd defendant intended to appeal was made on 7 March 2013.  The trial judge refused his application for leave to appeal on 27 May 2013. Nevertheless, this application for leave to appeal was made on 24 June 2014, which was 12 months beyond the 14 days limit provided by Order 59, rule 2B(3) of the Rules of the High Court.  In considering whether an application out of time should be granted, the court usually takes into account the following factors:

(1) length of the delay;

(2) reasons for the delay;

(3) strength of the arguments of the intended application/appeal;

(4) prejudice likely to cause to the other side of the action if an extension of time is granted.

14. In the present case, the 2^nd defendant has been out of time for 12 months which is indeed a very serious delay.  He has not given any reasonable explanation.  He claims he has found evidence to support that he has a cause of action, right of action and locus standi.  However, no detail or elaboration has been given.

15. In respect of the 2^nd defendant’s intended appeal, according to section 14AA(4) of the High Court Ordinance, Cap 4 of the Laws of Hong Kong, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success; or there is some other reason in the interests of justice why the appeal should be heard.

16. In our view, there is no reasonable prospect of success in the 2^nd defendant’s intended appeal.

17. First of all, it is trite law that a litigant cannot be both defendant and plaintiff in the same claim: Hong Kong Civil Procedure 2014 Vol 1 para 15/1/3 and Ellis v Kerr [1910] 1 Ch 529, 537.  While the 2^nd defendant is one of the defendants in the claim against the 1^st defendant, he cannot at the same time be one of the plaintiffs.  Paragraph 5 of the reasons for decision of the trial judge remains correct.

18. The 2^nd defendant has referred to Order 15, rules 6(2) and 7(2) of the Rules of the High Court.  The former rule provides that the court may order certain people to be joined as a party of a cause.  However, this is subject to the legal principle mentioned in paragraph 17 above.  The latter rule relates to the situation that the interest or liability of a party is devolved upon another one in the course of the proceedings, which is not applicable in the present case.

19. Apart from the above procedural problems, the affidavits filed by the 2^nd defendant also fail to show that he has a reasonable cause of action to claim against the 1^st defendant for interests in Unit 7D.  The record of the Lands Registry in this case shows that the 1^st defendant is the title owner of Unit 7D, and neither the plaintiff nor his father has ever been a title owner.  It is particularly important that even if the plaintiff is entitled to certain interests in Unit 7D and those interests are infringed, it does not mean that the 2^nd defendant is entitled to the legally recognised locus standi to claim against the infringing party.  The finding made by the trial judge that the 2^nd defendant has no cause of action or locus standi to claim against the 1^st defendant remains correct.

20. As to the 2^nd defendant’s allegations that he could not do his best in making submissions before the trial judge at the hearing and that the 1^st defendant colluded with another person to do harm to him, they do not amount to reasonable grounds of appeal.

21. To put it simply, the 2^nd defendant’s intended appeal is totally without merit and there is not a chance of success.

22. On the other hand, other judicial proceedings have already proceeded in the case of HCA 1628/2012 since the trial judge dismissed the 2^nd defendant’s appeal.  If the 2^nd defendant’s application for appeal out of time against the trial judge’s decision of refusing him to join as one of the plaintiffs is granted, the progress of the case will definitely be affected and prejudice may be caused to the 1^st defendant.

23. In light of the above analysis and reasons, we are of the view that we should not exercise the discretion to grant the 2^nd defendant leave to appeal out of time. The application is refused.

24. According to the usual rule in litigation, the 2^nd defendant whose application fails should pay for the 1^st defendant’s costs of this application.  It is also our view that the costs should be taxed summarily.

25. Solicitors for the 1^st defendant have submitted a statement of costs, and the amount of costs requested is $28,900.  Since no hearing is held for this application, Item D3 (preparation for hearing) in the amount of $6,000 should be excluded.  We find all other items reasonable.  The 2^nd defendant’s costs are taxed at $22,900.

26. Furthermore, having regard that the 2^nd defendant’s application is totally without merit, we therefore, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, make an order that no party may request the application to be reconsidered at an oral hearing inter partes.