KUOK HONG NENG v. YUEN SIK WAH AND ANOTHER

CACV 261/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 261 OF 2002

(ON APPEAL FROM HCMP 6023/2001)

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J U D G M E N T

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Hon Rogers VP:

1. This is a so-called appeal. It arises in this way: the plaintiff in this matter took out an originating summons under the provisions of Order 113 to recover possession of premises, which was a flat in Phoenix Apartments in Lee Garden Road. The plaintiff is the administrator of the estate of Dr Peng Lee, who had died in 1990. The proposed appellant, Mr Lau Ngai Sang, applied to join as 2nd defendant to those proceedings. The basis upon which Mr Lau applied to join as a defendant was that he said that the plaintiff's title had been extinguished under the provisions of the Limitation Ordinance.

2. It was Mr Lau's case that he had been receiving rent for the premises since about 1967 and had never accounted to Dr Peng Lee, who had emigrated a long time ago. Even on the basis of that evidence there are a number of issues which would arise if Mr Lau were to try to make good the point that the plaintiff's title had been extinguished. Be that as it may, these Order 113 proceedings are proceedings to recover possession of premises from persons who have no right to be in the premises and are not holding over after a tenancy has come to an end. They are not proceedings in which title to property comes in issue between the plaintiff and third parties. So, although Mr Lau was joined as 2nd defendant by the master, by order of 3 May the judge, quite rightly in my view, struck out the 2nd defendant as a party.

3. Then come the problems in this case. The time for appealing orders is set out in Order 59, Rule 4. For interlocutory orders the time limit is 14 days and in any other case it is 28 days. The order of Kwan J was entered on 10 May. The notice of appeal was dated 6 June and was served on 7 June. Since the order, as regards the 2nd defendant, Mr Lau, was an order striking him out as a party on a procedural ground, it was an interlocutory order and therefore any appeal should have been brought within 14 days, but it was not and, therefore, the appeal was wrong right from the start and should never have been allowed to proceed.

4. What is worse, under Order 59, Rule 5, an appellant is required to set down the appeal within 7 days after the service of the notice of appeal. There was no notice of setting down in this case until 18 March of this year. That notice of setting down and the application to fix a date should never have been permitted at all. Leave should have been applied for and the notice of setting down should never have been accepted without leave being granted. But that is not the end of the matter.

5. We now find out that what prompted the filing of the notice of setting down was information which had been given to the proposed appellant that the property had been sold to a third party. It was sold to the third party before the notice of setting down. There is, therefore, nothing left in these Order 113 proceedings. There is no order which the court could make on the Order 113 proceedings which would benefit the 2nd defendant, Mr Lau, in any way. Even if he were to succeed, which, as I have already indicated, I can hardly see how, all he would get would be his costs.

6. In those circumstances, this appeal is purely academic. With regard to academic appeals, this court, on 18 July of this year, in the case of Brian Nicholas Gay v Yip Shut Yuen, CACV74/2003, referred to the House of Lords decision in Ainsbury v Millington [1987] 1 WLR 379, and the headnote which read:

"It has always been a fundamental feature of the judicial system that the courts decide disputes between the parties before them and do not pronounce on abstract questions of law where there is no dispute to be resolved even though the question of law raised might be one of general importance, the resolution of which may have been left in doubt by different decisions in the Court of Appeal.

Where, therefore, a party had been refused an injunction requiring the other part to vacate a council house and by the time the case was called on for hearing before the Appeal Committee, the parties' tenancy of the council house had been terminated.

Held, that there would be no hearing on the merits and the appeal was dismissed."

7. In my view, insofar as there is any valid appeal in this case, it has to be struck out or, alternatively, dismissed because it is purely academic. I would therefore make an order dismissing this appeal.

Hon Yeung JA:

8. I agree with the judgment of the Vice President. I have nothing else to add.

Hon Sakhrani J:

9. I also agree and have nothing to add.