SZETO YUK LIN v. KANTON LTD AND OTHERS

CAMP 77/2017
[2018] HKCA 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 251 OF 2016)

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J U D G M E N T

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

1.  By a judgment handed down on 6 October 2017, Deputy High Court Judge Lee (“the Judge”) ordered that the proceedings commenced by the plaintiff by way of Originating Summons (“the OS”) be continued as if it had been begun by writ pursuant to Order 28 rule 8 of the Rules of the High Court (“RHC”).  By another judgment dated 1 December 2017, the Judge refused the plaintiff’s application for leave to appeal against his earlier judgment.  Undeterred, the plaintiff now renewed her leave to appeal before this Court.  Having considered the parties’ submissions, we take the view that the summons for leave to appeal can be disposed of on paper without an oral hearing. We now hand down our judgment.

BACKGROUND

2.  The background leading to the present application is set out in the main judgment, which we would respectfully adopt.

3.  In brief, the plaintiff is the registered owner of 4 parking spaces (Nos 1 - 4) on the Lower Ground Floor/Garage of the Pak Fai Mansion (“the said Building”), No. 72 Macdonnell Road, Hong Kong.  The 1^st – 5^th defendants are the registered owners of Nos. 5, 9, 10, 11, & 27 respectively.

4.  The plaintiff took out the OS on 29 January 2016 asking the court to seek the determination of the court on questions regarding her right of access to parking spaces Nos 1 – 4 against the 1^st to 5^th defendants for ingress to egress from the said 4 parking spaces by obliging them to leave the key to motor cars parked or to be parked at their car parking spaces with the Caretaker’s Office. Alternatively, the plaintiff relied on the terms of the DMC and/or common law which the plaintiff claimed to give her an implied right of way to her car parking spaces.

5.  The plaintiff also complained against the 6^th defendant for creating 6 additional parking spaces at the common parts of the said Building which constituted a breach of the DMC and a violation of s18(1)(c) of the Building Management Ordinance, Cap 344, alternatively, a trespass of land where the plaintiff is a co-owner of the land.

6.  The plaintiff asked for damages to be assessed by a Master for loss of use of car parking spaces Nos 1 –4 if the court ruled in favour of her for the aforesaid questions.

7.  The 2^nd to 5^th defendants disputed the plaintiff’s claims by putting forward a number of legal and factual matters.  Accordingly, the defendants took out an application pursuant to O28 r.8 of RHC for the proceedings to continue as if the cause or matter had been begun by writ so that proper pleadings and witness statements would be filed for the defendants to properly prepare for their defence.

The Judge’s Judgments

8.  By the main judgment, the Judge was satisfied that this was a suitable case for the court to exercise its case management discretion by ordering the present proceedings be continued as if it had been begun by writ for the following reasons :

(1) The Judge agreed with the defendants that the factual disputes as categorically set out in [16] and [17] of the main judgment are genuine and substantial.  The Judge considered the issues are relevant to the determination of the questions posed by the plaintiff in the OS and those issues cannot be resolved just by affidavit evidence.

(2) There are lack of clarity and sufficient particulars in respect of the plaintiff’s claim in the OS in particular for those based on the alleged breach of implied terms of DMC and common law and it would cause embarrassment to the defendants in preparing the defence.

(3) As to the claim of damages, there is no plea or clarity in the OS as to the cause of action or legal basis supporting the claimed damages or as to the breaches giving rise to the damages.

9.  The Judge dismissed the plaintiff’s application for leave to appeal for the following reasons :

(1) The plaintiff’s proposed appeal is a challenge to the discretion of the court in making a case management decision. The hearing which led to the Judgment was only about the defendants’ application for “converting” the OS proceedings into a writ action.  It was not an occasion for determination of the merits of the defendants’ proposed defences or the substantive rights of the parties. Thus, the Judge does not consider any prospect, not to say a reasonable prospect, of success in the proposed grounds of appeal.

(2) The fallacy of the appeal lies in the fact that the OS is not just a construction summons as the plaintiff portrays.  The plaintiff’s causes of action against the defendants are based on the common law, the alleged breaches of DMC and statutory duties.  The plaintiff just conveniently ignores those aspects of the claim as if they were not there and insists OS is a suitable mode in resolving the disputes.

(3) The Judge accepted that the factual issues raised by the defendants are substantial and relevant as explained in [16] to [18] of the main judgment and therefore found that it is a suitable case to exercise the discretion conferred by O28 r.8 of RHC for the conversion.

(4) Further, the plaintiff’s claim was lacking in clarity and particulars and would cause embarrassment to the defence.  Thus, filing of pleadings, witnesses statements and discovery of documents are necessary for proper disposal of issues of the case.

(5) The Judge also pointed out that some of the proposed grounds of appeal entail a misreading or even distortion of the Judgment while the other ones are bare complaints with no arguments advanced in support. Thus, the proposed grounds of appeal are devoid of merit and bear no chance of success.

Discussion

10.  Under section 14AA of the High Court Ordinance, Cap 4, leave will not be granted unless the court is satisfied that :

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

11.  Leave to appeal is not lightly granted especially for a case management decision.  This Court has repeatedly pointed out that case management decisions are within the province of first instance judge and the appellate court should not interfere or substitute its own view as to what is reasonable for that of the judge unless it is satisfied that the judge’s decision was plainly wrong.  A party who seeks to challenge a case management decision such as the one made by the Judge faces a very high hurdle; he must show that the judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational: Wong Kar Gee Mimi v. Severn Villa Ltd [2012] 1 HKLRD 887 at [31]; see also Cheung Yee Mong v. So Kwok Yan [1996] 2 HKLR 48 at p51 and Lee Tak Yee v. Chen Park Kuen [2001] 1 HKLRD 401.

12.  As explained below, the plaintiff has failed miserably to persuade us that there exist any reasons why we should disturb the Judge’s case management decision.

13.  Grounds of appeal 1, 2 and 3 can be dealt with together. Ground 1 complains that the Judge erred in holding that the factual disputes raised by the 2^nd to 5^th defendants “would preclude or prevent” it from determining any of the questions raised in the OS without first having resolved those factual issues.  Grounds 2 and 3 complained that the Judge erred in holding the factual disputes are substantial and relevant to the determination of the questions in the OS.

14.  The Judge has clearly pointed out and explained at [12] of the leave judgment that ground 1 entails a distortion of what the Judge said in [15] of the main judgment.  What the Judge was considering in the main judgment was whether there could be shown on the available evidence any genuine or substantial issues of facts which required to be adjudicated by the court so as to warrant its exercise of the case management power conferred under O28 r.8 of RHC for an order of conversion. The Judge had rightly found at [16] – [18] of the main judgment that the factual issues raised by the defendants were genuine, relevant and substantial issues of facts between the parties.  He therefore ordered the conversion.  We do not see any error in his analysis or findings.  Grounds 1, 2 and 3 are without merit and have no reasonable prospect of success.

15.  Ground 4 complains that the Judge erred in failing to appreciate that (i) the OS is essentially a construction summons and the admissible evidence should be restricted and (ii) the court ought to have held that none of the factual disputes would be relevant.  We agree with the Judge that such complaint is based on a false premise and the plaintiff just conveniently ignores the claims are based on common law, breach of statutory duties and breach of DMC as alleged which should be appropriately dealt with in an action by writ.  Further, as we have just held, the Judge is perfectly entitled to find that the factual issues are substantial and relevant. Ground 4 is doomed to fail.

16.  Ground 5 complains that the Judge erred in failing to hold that the defendant’s contention of “wavier” and “estoppel” do not constitute a valid defence under an expressed covenant. Such complaint, in our view, is a misapprehension on the part of the plaintiff that the hearing before the Judge was only about the relevant defendants’ application on procedural matter rather than for determination of issues or any substantial rights of the parties.  The Judge is right to say that this point is simply not yet ripe for determination.

17.  The plaintiff contends in ground 6 that the Judge should have ordered that the OS be set down for hearing with the evidence available in hand.  As we have held that the Judge is correct to find that this case involves substantial factual issues which should warrant a conversion to writ proceedings, it follows that pleadings, witness statement and discovery of documents would be necessary for proper disposal of the case. As such, ground 6 must fail.

18.  The plaintiff complains in ground 7 that the Judge erred in holding the factual disputes raised by the defendants were issues of law rather than issues of facts and thus the directions of filing of pleadings would not assist in the determination of those issues.  We fail to see how the Judge’s ruling that the matters concerning the access and usage of the car parking spaces of the said Building as factual issues can be wrong.  This ground is totally misconceived.

19.  The plaintiff complains in ground 8 that the Judge erred in holding that insofar as Questions (d) and (e) of the OS, the plaintiff’s claim in relation to the creation of 6 additional car parking spaces against the 6^th defendant based on alleged breach of implied terms of the DMC and common law were lacking in clarity and particulars and would cause embarrassment to the defence.

20.  As explained by the Judge in [30] – [32] of the leave judgment, (i) it is a misunderstanding on the part of the plaintiff that the Judge did not hold Questions (d) and (e) of the OS would cause embarrassment to the defendants; (ii) rather, as pointed out at [21] of the main judgment, it was the plaintiff’s claim, particularized in relation to the alleged breach of DMC and common law that were ill-defined and lack of sufficient particulars so that they would cause embarrassment to the defendants in preparing the defence; (iii) the Judge went on to consider Question (f) and the claim of damages as set out in the OS and found that they just added on the confusion as the same provides no basis and particulars of the claim.  We agree with the Judge’s view and analysis and do not see any merit in this ground.

21.  The plaintiff complains in ground 9 that upon the court’s refusal of the 6^th defendant’s application for leave to file further affirmation out of time, the question whether the DMC contains any terms to enable the plaintiff to enforce against the 6^th defendant and whether the plaintiff has any rights under common law to do so are matter of law and need not be specified in the affirmation evidence.  The Judge should deal with the question in the OS pursuant to O28 r.4(1) of RHC or directed a short hearing.

22.  This ground is devoid of merit.  We note that the plaintiff had never asked for a summary direction of the claim against the 6^th defendant before and even the plaintiff’s counsel Mr. Chong had specifically stated that the plaintiff did not want to separate the claims among the defendants.  Further, we cannot see any merit in the argument that the plaintiff’s said claim against the 6^th defendant just involve a matter of law without factual issues.  This ground bears no chance of success.

23.  Ground 10 is about the plaintiff’s complaint that the assessment of damages is a matter of law that can be determined in the OS and Master K Lo’s order was to go for a split trial on liability and quantum.  The Judge found at[42] of the leave judgment, “This ground not only has failed to address fully (if at all) this Court’s reasons for ordering conversion, but it also entails a distortion of the Master’s Order and is most regrettable.”  We agree.

24.  In sum, we do not find any merit in any grounds of appeal.  It is plain to us that the Judge did pay regard to the correct legal principles in exercising the discretion to allow the conversion under O28 r.8 of RHC. Instead of being plainly wrong, his decision is plainly right.  We cannot see any reasonable ground for interfering the Judge’s decision.

DISPOSITION

25.  For the reasons set out above, we are not satisfied that the plaintiff’s intended appeal has any reasonable prospect of success.  There is no other reason in the interest of justice why the appeal should be heard. Accordingly, we dismiss the plaintiff’s summons dated 15 December 2017.

26.  As the plaintiff’s applications are devoid of merits, we make an order pursuant to Order 59 rule 2A (8) of the Rules of the High Court that no party may under rule 2A (7) request the determination of this Court to be reconsidered at an oral hearing inter partes.

27.  Costs should follow event.  We order the plaintiff to pay the costs of the 3^rd defendant, 5^th defendant & 6^th defendant summarily assessed at HK$28,000 for the 3^rd defendant, HK$35,000 for the 5^th defendant and HK$50,000 for the 6^th defendant.