XCHRX LAU KWOK WO VILUSCO v. LUK KAM TONG BENJAMIN AND ANOTHER

HCA3210/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3210 OF 1998

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D E C I S I O N

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Extension of time

1. The Plaintiff applied for extension of time to appeal against the decision of the Master given on 5th November 1998. The Master gave summary judgment against the Plaintiff with damages to be assessed. The application for extension of time was only lodged on 4th May 1999.

Discretion

2. It is a matter of discretion whether extension of time should be granted and the factors to be considered are as follows :-

1. The length of the delay.

2. The reasons for the delay.

3. The merits of the appeal.

4. Prejudice to the other party.

Substantial delay

3. The time for appeal against a master's decision is five days. In this case, six months had lapsed since the judgment. A substantial delay had occurred.

Excuse unacceptable

4. The reason given for the delay was based on the financial problem of the Plaintiff. This is not an acceptable reason. The Plaintiff had the benefit of legal advice beforehand on his right to appeal. He could pursue his appeal in person even if he did not have the money to instruct lawyers.

No merits on appeal

5. On merits, the Plaintiff raised requisition of title on 9th February 1998 which was the date fixed for the completion of the sale and insisted the Defendants to answer it by 5:30 p.m. of the same day. On the same day, the Plaintiff alleged the Defendants had not answered the requisition and had not shown a good title, therefore they had repudiated the sale and purchase agreement and he accepted the repudiation. Just as a vendor cannot furnish answers to requisitions raised by the purchaser only on the day fixed for completion and insisted on completion to take place (Active Keen Industries Ltd. v. Fok Chi Keong [1994] 2 HKC 67), a purchaser cannot likewise only raise requisition on the day of the completion and insisted an answer to be given on the same day. The vendor must be given a reasonable time to answer the requisition. This is irrespective of whether the Plaintiff had already waived the right to requisition and accepted the title by tendering the draft assignment to the Defendants. According to the Plaintiff, he received the survey report of the bank showing the alteration on 6th February 1998.

6. What the Plaintiff did in this case was unacceptable and could not be justified. I am not satisfied that the Plaintiff has merits on the appeal.

Not necessary to consider prejudice

7. It is not necessary for me to consider the question of prejudice to the Defendants.

Application dismissed

8. Accordingly, I would refuse to exercise the discretion in favour of the Plaintiff and the application is dismissed.