THE INCORPORATED OWNERS OF FINANCE BUILDING v. BRIGHT HILL MANAGEMENT CONSULTANTS COMPANY LTD

DCCJ 4738/2020

[2025] HKDC 982

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4738 OF 2020

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BETWEEN

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DECISION

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Introduction

1.  By a summons filed on 20 November 2024 (“the Summons”), the defendant applied for leave to appeal against my judgment dated 21 October 2024 (“my judgment”) out of time.

2.  By an application filed on 4 November 2024, the defendant applied to vary the costs order nisi of my judgment.

Legal principles

3.  Section 63A(2) of the District Court Ordinance (“DCO”) provides:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that…

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, ie whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal as is laid down in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd, HCMP 357/2011, 8/7/2011, unreported.

5.  Where the appeal is against the exercise of a discretion, the appellant ought to demonstrate that the decision was plainly wrong, or that the trial judge has taken irrelevant matters into consideration or has ignored relevant matters: see SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 at p 48.

Appeal out of time

6.  Order 58 rule 2(4)(b) and (10) provides:

“(4) An application for leave to appeal must be made to a judge, or to a master in the case of an appeal under paragraph (2), within---

…

(b) in the case of an appeal from a judgment, order or decision (other than an interlocutory judgment, order or decision) of a judge, 28 days from the date of the judgment, order or decision;

…

(10) The Court or the Court of Appeal may, at any time, and notwithstanding that the time for an appeal or an application for leave to appeal may have already expired, extend the time for the appeal or for applying for leave to appeal.”

7.  The defendant’s application is therefore late by 2 days.

8.  The defendant’s representative, Mr Lie Han Ji, confirmed in his affirmations that he received a copy of my judgment on 23 October 2024. He attempted to file a summons applying for leave to appeal on 19 November 2024 but was told by the Registry to add “out of time” in the summons. He had no choice but to rush to attend a medical review in a hospital. The Summons was filed on the next day, ie 20 November 2024. Mr Lie argued that as he received my judgment on 23 October 2024, “the filing deadline should be 20 November 2024”. Mr Lie further submitted that “at most there was miscalculation without any D’s intention to file late”.

9.  By the clear wordings of Order 58 rule 2(4)(b), the time should run from the date of the judgment, not the date of receipt of the judgment. The argument of the defendant must be rejected.

10.  The defendant has not put forward any explanation for the miscalculation of time. I find that the delay was inexcusable.

11.  In Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, the Court of Appeal at 129F-G rejected the submission that where the delay is insubstantial but inexcusable, it is appropriate to grant an extension without considering the merits of the appeal. The Court of Appeal further held at 129I that where the delay is inexcusable, the party seeking an extension of time must show a real prospect of success on the merits.

12.  It is therefore necessary to consider the merits of the defendant’s intended appeal.

13.  Strictly speaking, the defendant did not formulate any specific grounds of appeal. The affirmations of Mr Lie and the written submission contain narratives of various matters, many of which are irrelevant.

Inability of Mr Lie to attend the trial

14.  The defendant placed heavy emphasis on the sickness of Mr Lie which rendered him unable to attend the trial.

15.  By his supporting affirmation filed on 20 November 2024, he produced 8 medical certificates dated between 25 January 2024 to 13 June 2024 showing that he was given sick leave from 22 January 2024 to 23 June 2024. The said period covers both the pre-trial review and the trial.

16.  Prior to the pre-trial review on 20 February 2024, Mr Lie applied for an adjournment of the pre-trial review and the trial. His Honour Judge Harold Leong was of the view that mere production of a sick leave certificate was insufficient to show that Mr Lie was incapable of attending a court hearing and therefore dismissed the application. The defendant was notified of the decision of the learned judge on 19 February 2024.

17.  No further application was made by the defendant for the adjournment of the trial. However, neither the defendant nor Mr Lie appeared on the date of the trial.

18.  As the trial was not re-fixed or adjourned by an order of the court, it should and did take place as scheduled. Like the plaintiff, the defendant was obliged to appear and to proceed with the trial. The absence of the defendant at the trial was totally unjustified. The defendant did so at the risk of the trial proceeding in its absence as is the present case.

19.  Albeit that the trial was proceeded in the defendant’s absence, the plaintiff was obliged to and did call evidence in support of the plaintiff’s claim. I considered the evidence and made findings of fact according to the evidence.

20.  There is no justification to hold a 2^nd trial due to the fault of the defendant itself. I see no merits in the defendant’s submission in this respect.

Other matters

21.  The defendant made submission to the effect that the action was wrongly commenced in the District Court and the interpretation of Deed of Mutual Covenants and the Building Management Ordinance falls within the exclusive jurisdiction of the Lands Tribunal.

22.  The claim of this action was for the outstanding balance of the defendant’s share of contribution to the repair works and management charges. The claim falls within Section 32 of the District Court Ordinance. The so-called exclusive jurisdiction of the Lands Tribunal in interpreting Deed of Mutual Covenants and the Building Management Ordinance is incorrect.

23.  The defendant also made submission disputing the apportionment method.

24.  The defendant as one of the owners of the building, is bound by the resolutions of the incorporated owners. The defendant’s submission is a non-starter.

Variation of costs order nisi

25.  The defendant complained that no explanation was given for the costs order nisi and the defendant had no opportunity to make closing submission on 22 April 2024. Then the defendant repeated its submission for leave to appeal.

26.  The costs order nisi was given on the basis of the general rule that costs to follow the event. The defendant being the losing party, it should therefore bear the costs of the action.

27.  The defendant had elected not to attend the trial. The complaint that the defendant had no opportunity to make closing submission is its own making. There is no substance in the complaint.

28.  The other submission are not relevant in the consideration of varying a costs order nisi.

29.  I see no reason to depart from the general rule that costs to follow the event. The defendant’s application must fail.

Conclusion and order

30.  By reasons of the foregoing, the defendant has failed to demonstrate any prospect of success (not to mention real prospect of success) of its intended appeal. No extension of time is granted to the defendant to apply for leave to appeal out of time. The defendant’s application is dismissed.

31.  The defendant’s application for the variation of the costs order nisi is also dismissed. The costs order nisi is made absolute.

Costs

32.  Costs to follow the event. I order the defendant to pay the plaintiff the costs of the Summons and the application for variation of costs order nisi with certificate for counsel, to be taxed if not agreed.