TSOI CHIK SANG LAWRENCE v. TASTY CATERING GROUP LTD AND OTHERS

CACV 94 /2019

[2019] HKCA 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 94 OF 2019

(ON APPEAL FROM HCMP NO 823 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the judgment of the Court):

1.  On 1 June 2018, the plaintiff issued an originating summons in HCMP 823/2018 to challenge the validity of an extraordinary general meeting of the 4^th defendant, Hang Heung Cake Shop Co Ltd, held on 28 May 2018 and a meeting of the board of directors held on 31 May 2018. The application was scheduled to be heard before Au‑Yeung J on 30 January 2019.

2.  On 19 December 2019, Cheng Hung Kit (“Cheng”), issued a summons under Order 15 rule 6(2) seeking to join in the proceedings as an intervener and eventually to replace the existing plaintiff, Tsoi Chik Sang Lawrence (“Tsoi”), as the plaintiff.

3.  On 4 January 2019, Tsoi applied for leave to discontinue the proceedings.  On 18 January 2019, all parties in the proceedings filed a consent summons to compromise the action.

4.  Cheng issued a further summons on 22 January 2019 applying to substitute Tsoi as the plaintiff and to join Tsoi as the 10^th defendant.

5.  On 30 January 2019, Au‑Yeung J dismissed both summonses of Cheng, and made an order in terms of the consent summons of 18 January and gave leave to Tsoi to discontinue the proceedings.

6.  Cheng filed a Notice of Appeal on 26 February 2019 to appeal the decision and order of Au‑Yeung J in dismissing his two summonses.  He filed a Supplementary Notice of Appeal on 21 March 2019.

7.  On 19 March 2019, the Registrar of Civil Appeals wrote to the parties drawing their attention to the judgment of the Court of Appeal in Bright Shipping Limited v Changhong Group (HK) Limited [2019] HKCA 246.  The Registrar stated that in light of that judgment, the order of Au‑Yeung J under appeal would appear to be an interlocutory order and the Notice of Appeal is liable to be struck out for failing to obtain leave to appeal.  He further directed that if Cheng objects to the Notice of Appeal being struck out, he may lodge written submissions on or before 4 April and the Notice of Appeal will be referred to the Court of Appeal for consideration.

8.  Cheng lodged his submissions on 3 April.  On 8 April, I directed Tsoi and the defendants to lodge submissions by 15 April and that the Court of Appeal will determine on paper if the Notice of Appeal should be struck out.  Tsoi and some of the defendants lodged their submissions accordingly.

9.  The applicable test for determining if a decision is interlocutory is the application approach (Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222).  This involves an examination of the nature of the application to see whether the order made upon such application would, whether it fails or succeeds, determine the whole action.  In considering the nature of the application, it is necessary to look not only at its form, but also the purpose and substance of the application and the issues to be determined by the court (B+B Construction Ltd v Sun Alliance & London Insurance (2000) 3 HKCFAR 503 at 506H to I).  The issue in question has to be an issue on the merits as opposed to the procedural steps for bringing or preparing a case before it is presented to the court for final determination on the merits (Bright Shipping Limited v Changhong Group (HK) Limited, §11).

10.  Applying that approach, the decision of Au‑Yeung J in dismissing Cheng’s summonses for joinder or substitution as a party is plainly interlocutory, as whatever the outcome of Cheng’s summonses, the order made on his summonses will not finally determine the proceedings in HCMP 823/2018 which seek to challenge the validity of the EGM and the board meeting, nor will this determine the disputes sought to be raised by Cheng concerning the rights of shareholders and the directorship in the 4^th defendant.  The Registrar is clearly right in stating that Au‑Yeung J’s order did not finally determine any issue on the substantive rights between Cheng and the other parties.

11.  Cheng sought to invoke Order 59 rules 21(1)(a) and (2)(i), which provide that an appeal lies as of right from “a judgment or order determining in a summary way the substantive rights of a party to an action” and that “an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue” is a judgment and order determining in a summary way the substantive rights of a party.  He contended that the addition or substitution of a party to an existing claim is in law a new claim.

12.  This argument is misconceived.  The summonses of Cheng were not for “amendment of a pleading to introduce a new claim or defence or any other new issue”.  As defined in Order 1 rule 4, “pleading” “does not include a petition, summons or preliminary act”, see also Hong Kong Civil Procedure 2019, vol 1, §18/0/2.

13.  As no leave to appeal has been obtained, the appeal commenced by the Notice of Appeal and the Supplementary Notice of Appeal is incompetent.  We order the Notice of Appeal and the Supplementary Notice of Appeal to be struck out.  Cheng should pay Tsoi and the defendants the costs of and occasioned by the appeal.  There will be a summary assessment of costs on paper.  For this purpose, Tsoi and the defendants are to lodge their statements of costs within seven days of the handing down of this judgment and Cheng may respond in writing to those statements within seven days thereafter.