HILL CONCEPT LTD v. YUEN TIN YUN

DCCJ 4215/2023

[2024] HKDC 1282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4215 OF 2023

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BETWEEN

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DECISION

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INTRODUCTION

1.  On 26 March 2024, I dismissed the Defendant’s appeal against:

(1) the summary judgment entered by Registrar Soong on 19 January 2024 regarding vacant possession of the Property[1];

(2) the case management directions made by Registrar Soong and Master Maurice Lam on 19 January 2024 and 24 January 2024[2].

2.  As explained in my Reasons for Decision dated 2 April 2024 ([2024] HKDC 499[3]), I am of the view that:-

(1) The Defendant does not have any arguable defence against the Plaintiff’s claim for vacant possession of the Property[4].

(2) The case management directions provided by Registrar Soong and Master Lam were sound and appropriate[5].

3.  By the summons dated 12 April 2024, the Defendant seeks leave to appeal against my order/decision dated 26 March 2024.

4.  Pursuant to the directions made by Chief District Judge Justin Ko on 27 May 2024:

(1) The Defendant’s summons seeking leave to appeal is to be dealt on paper; and

(2) The parties have respectively filed and lodged affirmations and written submissions (which I have duly considered).

LEAVE TO APPEAL AGAINST MY DECISION ON THE SUMMARY JUDGMENT FOR VACANT POSSESSION

It is Unnecessary for the Defendant to seek extension of time

5.  In his summons dated 12 April 2024, the Defendant states that he seeks leave to appeal out of time. In light of this indication, the Plaintiff’s legal representatives make submissions on the length of the delay, the reasons for the delay and alleged prejudice.

6.  Insofar as the intended appeal against my decision on the summary judgment for vacant possession is concerned, it appears that both parties have proceeded on a wrong premise.

7.  The following provisions in the Rules of District Court (Cap 336H) are pertinent:-

(1) Order 58, rule 2(4)(c) provides that an application for leave to appeal against a judge’s interlocutory judgment, order or decision shall be made within 14 days.

(2) Order 58, rule 2(4)(b) provides that an application for leave to appeal against a judge’s judgment, order or decision that is not interlocutory in nature shall be made within 28 days.

(3) According to Order 58, rule 4(1)(a), a judgment or order that determines the substantive rights of a party in a summary way is not interlocutory in nature.

(4) Order 58, rule 4(2) further provides that a summary judgment under order 14 or order 86 is a judgment or order that determines in a summary way the substantive rights of a party.

8.  There is no question that my order dated 26 March 2021 determined the substantive rights of the parties. Since I upheld the summary judgment entered by Registrar Soong, the Defendant is liable to deliver vacant possession of the Property to the Plaintiff, and the Plaintiff may take enforcement action to expel the Defendant from the Property.

9.  Hence, pursuant to Order 58, rule 2(4)(b), the Defendant had 28 days to take out an application for leave to appeal.

10.  Whilst my order was made on 26 March 2024, the Defendant took out the summons seeking leave to appeal on 12 April 2024. Accordingly, the Defendant’s application for leave to appeal against my decision on the summary judgment was made within time.

No Reasonable Prospect of Success and Reason in the Interest of Justice

11.  Pursuant to section 63A of the District Court Ordinance (Cap 336), no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

12.  The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17.

13.  As Kwan JA (as she then was) pointed out in 秦錦釗 及 香港特別行政區 [2018] HKCA 167 at para 8, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning, and pinpoint the error in respect thereof. See also李智慧 及 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984 at para 11 (per Chow JA).

14.  In my Reasons for Decision, I pointed out that:-

(1) As completion did not take place, the license granted in favour of the Defendant expired on 13 June 2024. Since then, the Defendant has been breaching the License Agreement and committing the tort of trespass on a continuous basis: see paras 22-23.

(2) The Defendant has treated the SPA as being rescinded and/or terminated. As such, there is no basis for him to possess the Property: see para 26.

(3) The allegations raised by the Defendant and her mother (ie Madame Wong) do not constitute valid excuses for maintaining possession of the Property. In any event, their allegations are unsubstantiated and unsupported by documents: see paras 24-25 and 27.

15.  In his affirmations and written submissions, the Defendant simply reiterates his stance that he has arguable defences to the Plaintiff’s claims, and that the SPA was a deceitful transaction.

16.  The Defendant has not identified any error in my analysis and reasoning. He cannot explain why my findings and conclusion are wrong in law or wrong on facts; nor can he point out any legal basis for possessing the Property.

17.  I am of the view that the Defendant’s intended appeal is wholly unarguable and utterly unmeritorious. I cannot see any reason in the interest of justice that the intended appeal should be heard.

18.  For completeness, I should also point out there is no room for the Defendant to raise new allegations to accuse the Plaintiff, its holding company and the estate agent of collusion. The Defendant fails to show that the requirements under the rules in Ladd v Marshall [1954] 3 All ER 745 are satisfied. I cannot see any reason why the Defendant did not raise the allegations in question in the affirmation filed to oppose the Plaintiff’s application for summary judgment. I also cannot see how these allegations (which are serious but unsubstantiated and unsupported by documents) may avail the Defendant’s contention that no vacant possession should be delivered.

19.  In the premises, I refuse to grant leave to the Defendant to appeal against my decision that affirms the summary judgment for vacant possession of the Property.

LEAVE TO APPEAL AGAINST MY DECISION ON THE CASE MANAGEMENT DIRECTIONS PROVIDED BY REGISTRAR SOONG AND MASTER MAURICE LAM

20.  My decision to affirm Registrar Soong and Master Lam’s case management directions (see my Reasons for Decision, paras 29 to 41) was plainly interlocutory in nature.

21.  Pursuant to Order 58, rule 2(4)(c), the Defendant should have taken out his application for leave to appeal within 14 days.

22.  It is not in dispute that the Defendant failed to comply with Order 58, rule 2(4)(c), and there was a delay of 3 days.

23.  As Lam VP (as Lam PJ then was) pointed out in The Hongkong and Shanghai Banking Corporation Ltd v Sy Shu Wu & Ors [2018] HKCA 736 at paras 8-10:

“8. This Court has discretion to grant or refuse an extension of time for appealing. The court’s approach in this type of application is well established. The factors normally taken into account are:

(1) the length of the delay;

(2) the reasons for the delay;

(3) the chances of success of the intended appeal; and

(4) the prejudice to the other party if time is extended.

9. Where the delay is inexcusable, the party seeking an extension of time must show a real prospect of success on the merits, not just a reasonable prospect of success: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125.

10. Although prejudice to the other party is a ground for refusing to extend time, the absence of prejudice is not a ground for extending time: see Jotz, Klaus-Bernhard Markus v Hamawy, Tarek Mahmoud & Anor [2018] HKCA 144 at paragraph 11.”

24.  The learned authors of Hong Kong Civil Procedure (2024) at para 59/4/9 (at p 1269) also pointed out that:

“It is entirely in the discretion of the court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are: (1) the length of the delay; (3) the reasons for the delay; (3) the changes of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the applicant is granted.”

25.  Whilst I accept that the length of the delay was minimal and that the Plaintiff would not suffer prejudice, I do not accept that there is a valid explanation for the delay. In my view, it is important for litigants to abide by the procedural rules of the Court, and the fact that the Defendant is not legally represented is not ipso facto an excuse for non-compliant.

26.  More importantly, I am of the view that the proposed appeal against my decision on the case management directions is utterly unarguable and without merits.

27.  In paragraphs 29 to 41 of my Reasons for Decision, I explained why I refused to interfere with the case management decisions of Registrar Loong and Master Maurice Lam, which were sound and appropriate. I also explained why the Defendant must not seek to thwart or obstruct the present proceedings by making applications for legal aid repeatedly.

28.  The Defendant has failed to identify any error in my analysis and reasoning.

29.  In any event, the proposed appeal is academic now. The case management directions that the Defendant seeks to challenge were concerned with the Plaintiff’s applications for (i) summary judgment/interim payment in respect of mense profit and contractual damages; and (ii) striking out the Defendant’s counterclaim. The substantive hearing of these applications took place on 23 April 2024 before Master Vincent Kee, who entered interlocutory judgment against the Defendant[6] and struck out his counterclaim.

30.  In the circumstances, I cannot see any reason why the appeal should be heard at all.

31.  For the above reasons, I declined to exercise my discretion to grant extension of time. Since the intended appeal regarding my decision of upholding Registrar Soong and Master Maurice Lam’s case management decisions is unarguable and academic, it would be futile to grant any extension of time.

LEAVE TO APPEAL AGAINST MY DECISION ON COSTS

32.  The Defendant also contends that I should not have ordered costs against him without his consent.

33.  My decision on costs[7] did not involve the substantive rights of the parties, and as such any application seeking leave to appeal should have been taken out within 14 days pursuant to Order 58, rule 2(4)(c). The Defendant failed to do so.

34.  Thus, the discussion set out in paragraphs 23 to 25 above is applicable.

35.  Insofar as the question of merits is concerned, the Defendant has failed to provide any explanation as to why I erred in (i) ordering him to pay the costs of the appeal before me; and (ii) conducting summary assessment of costs in lieu of taxation pursuant to Order 62, rule 9A(1)(a).

36.  It is trite that costs should generally follow the event unless there are good reasons to depart from the general rule. It is also trite that summary assessment is an effective way to dispose of the question of costs. Depending on the circumstances, this procedure is appropriate where the matter is self-contained and not complicated.

37.  At the hearing on 26 March 2024, the Defendant was given opportunities to address me on (i) the question whether he should ordered to pay the costs of the appeal; and (ii) the contents of the statement of costs lodged by the Plaintiff’s solicitors. Since the Defendant’s appeal failed, I could not see any reason why he should not bear the costs incurred by Plaintiff. Having considered the items in the Plaintiff’s statement of costs and adopting a broad-brush approach, I summarily assessed costs at HK$35,000.

38.  I cannot see how it can be said that my exercise of discretion on costs was erroneous. The Defendant’s intended appeal is utterly hopeless.

39.  In the premises, I decline to exercise my discretion to grant extension of time, which would be futile.

CONCLUSION

40.  For all the above reasons, I dismiss the Defendant’s summons dated 12 April 2024.

41.  Costs should follow the event. I make a costs order nisi that the Defendant do pay the Plaintiff’s costs in respect of the summons dated 12 April 2024, to be taxed if not agreed. Any application to vary such costs order nisi shall be made within 14 days.