CHEUNG VEI LUN WARREN v. HOM MEE YIN AND ANOTHER

HCMP3096/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3096 OF 2004

(On an intended appeal from District Court Civil Action No. 2788 of 2003)

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J U D G M E N T

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Hon Chu J (giving the judgment of the Court) :

1.  This is the applicant’s renewed application for leave to appeal out of time against the judgment of H H Judge Carlson made on 18 November 2003 (“the Judgment).

Background

2.  The action in the court below was brought by the defendants as landlords against the applicant as tenant for recovery of possession on account of failure to pay rent and for arrears of rent, rates and management fees and/or mense profits and damages.  The applicant counterclaimed for damages arising out of a distraint warrant that he contends is invalid, and sought also to set-off against the arrears of rent and/or mesne profits.

3.  At the hearing before the Judge on 17 November 2003, there were three summonses.  The first was an application for summary judgment on the claim.  The second was an application to strike out the defence and counterclaim.  The third was the applicant’s application to enter judgment on the counterclaim in default of defence.

4.  By the Judgment, the Judge granted summary judgment for possession and for payment of arrears of rent, rates, management fees and mesne profits together with interest and costs.  The Judge ordered that the payment of arrears and mesne profits should be paid by 17 November 2004, a year later.  Although the Judge had provided for relief against forfeiture of the tenancy, we were told by the applicant that he had not taken this up and possession was recovered in December 2003.

5.  On the striking out application, the Judge made no order as he considered the application had become otiose with the grant of summary judgment on the claim.  As to the applicant’s application for default judgment on the counterclaim, the Judge dismissed the application, observing that it was devoid of merit.

The application

6.  On 15 November 2004, the applicant applied to the Judge for leave to appeal against the Judgment, and also for a stay of execution of the Judgment.  Both applications were refused.  The applicant then issued High Court Action Miscellaneous Proceedings No. 2985 of 2004 seeking leave to appeal against the refusal of stay.  The  application was dismissed by le Pichon JA on 22 November 2004.

7.  On 26 November 2004, the applicant issued the present proceedings seeking leave to appeal out of time against the Judgment and for a stay of execution of the Judgment.   On 29 November 2004, Rogers VP dismissed the application upon a consideration of the papers.  The applicant now applies to renew the application under Order 59 rule 14(2A) of Rules of the High Court, the time to do so having been extended by Rogers VP on 15 December 2004.

8.  It is a matter of discretion whether to grant or refuse an extension of time to appeal.  The factors normally taken into account in exercising the discretion include: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the degree of prejudice to the responding party if the extension is granted: Hong Kong Civil Procedure 2004 p.837 at para.59/4/14.

Delay

9.  In the present case, the application for leave to appeal is out of time by almost a year.  It is a very serious delay.  The applicant had suggested that because he had until November 2004 to pay for the arrears of rent, rates and management fees and mesne profits, the Judgment only became operative as from November 2004.  We do not agree.  The Judgment took effect upon its pronouncement and the time for applying for leave to appeal started to run when the Judgment was perfected.

10.  The only explanation given by the applicant for the delay in applying for leave to appeal in his affidavits leading the present application is the costs of the appeal and that he had not realized that leave could be applied for ex parte on paper.   At the hearing of the renewed application, the applicant added that time had been spent on applying for legal aid and when it was refused in May 2004, he was involved in appealing to the Registrar against the refusal, in addition to seeking assistance from the pro bono scheme of the Bar Association.

11.  In our view, the explanations offered by the applicant do not amount to good reasons for extending the time.  The applicant acted in person in the court below and personally conducted the hearing before the Judge.  As he said, he was well conversant with the facts and the arguments involved.  There is no reason why his application of legal aid and the appeal against the refusal of legal aid, or the question of legal representation, would have prevented him from applying for leave to appeal.  The applicant had not explained why he could not have commenced the appeal procedure while seeking legal representation or assistance.  His concern about the legal costs of the appeal is also not a good excuse for not acting promptly.  

Merits of the intended appeal

12.  As to the merits of the intended appeal, on the materials before us, we are not convinced that there are good chances of the appeal succeeding.   

13.  In particular, the applicant argued that the Judge erred in dismissing his application for default judgment on the counterclaim when no order was made on the application to strike out the defence and counterclaim.  On an application to enter judgment, the court retains a discretion.  The court may refuse to enter judgment if it considers the claim or counterclaim has no proper legal basis or that a case for granting relief is not made out.  

14.  In the present case, the applicant’s counterclaim is for unliquidated damages.  It is plain from the Judgment that the Judge had decided the issue of the validity of the distraint warrant against the applicant.  The Judge was of the view that the applicant’s subsequent part payment did not render the initial issue of the distraint warrant bad, and the execution was levied for the lesser sum.  Given that the counterclaim is founded upon the applicant’s complaints about the distraint warrant which were not upheld, the Judge would be entitled to conclude, as he did, that the counterclaim must fail and to dismiss the application for judgment on the counterclaim. 

15.  Considering the very serious delay for which there is no satisfactory explanation and the lack of strong merits in the intended appeal, we are of the view that the discretion should be exercised against granting leave to appeal out of time.   Accordingly, we dismiss the application.