QUENTIN KEITH HILLS v. MARLENE RITA WITTMAN

HCMP 340/2008

in the high court of the

hong kong special administrative region

court of appeal

miscellaneous proceedings no. 340 of 2008

(on an intended appeal from HCA NO. 2149 of 2006)

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D E C I S I O N

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1.  This is an application for extension of time to file a notice of appeal from a judgment entered by Suffiad J on 23 November in High Court Action 2149 of 2006, notwithstanding that the time for appeal has expired, and that execution of the judgment be stayed pending the outcome of the appeal from the order dated 16 November and judgment and order made by Suffiad J on 6 February 2008.

2.  What has happened in this case is that there is a claim based on what was said to have been a loan with partial repayment.  The claim was made by the Plaintiff, who was formerly the fiancé of the Defendant.  There is no dispute that the money was in fact transferred as long ago as 2001.  The parties broke up in 2006 and almost immediately thereafter the Plaintiff requested the return of what he said was the loan.

3.  I have considered the evidence filed in the action, and it would appear that there were never any emails returned to the Plaintiff disputing the fact that it was a loan and saying it was a gift, but that is the defence which has been raised.

4.  The matter went before the Master.  The Master gave summary judgment in favour of the Plaintiff.  The Defendant appealed to Suffiad J, and on 23 October he allowed the appeal, but only to the extent that he gave conditional leave to the Defendant to defend on the basis that the full sum of $135,000 was paid into court within 21 days.

5.  In his judgment in that matter, the judge said, in effect, that he was only just persuaded to give conditional leave to defend and he did not exclude the possibility that it was a sham defence, and he considered the whole matter very shadowy.

6.  I say no more about that other than to say that I can see no reasonable prospect, on the evidence which has been filed to date, of the Court of Appeal coming to any other decision or allowing that appeal.

7.  The application made today is for an extension of time to appeal against the final order that was made because the money was not paid into court.  What had happened was that on the penultimate day for that payment in, or thereabouts, at any rate, application was made on behalf of the Defendant for an extension of time for the payment into court.  The basis of that application was that the Defendant did not have access to funds because her bank account with the HSBC was subject to a garnishee order.

8.  As it transpired, that garnishee order had been discharged in August of 2007; but it would appear that the Defendant was unaware of that.  It then came as a surprise to her solicitor in court when he was told by the lawyers for the Plaintiff that the garnishee order was no longer extant; it had been discharged.  At that, the Defendant’s solicitor invited the court to dismiss the application, which the judge duly did, and judgment was entered.

9.  The defendant is now represented by a different firm of solicitors.  It is said, that the previous solicitor acted without instructions, and what is more, the Defendant has a large number of claims which can be made against the Plaintiff, and since the Plaintiff is abroad it is going to be extremely difficult for her to bring those claims, and it is unlikely that the Plaintiff is ever going to come to Hong Kong because he owes other people money in Hong Kong.

10.  Be all that as it may, on the basic application I do not consider that it would be right for me to grant an extension of time which, in effect, is an extension of time for leave to appeal against the Order 14 proceedings, because, in my view, as I have already said, there is very little prospect, on what I have seen in this case, of any such appeal being allowed.

11.  When one looks at the chronology of what has happened, this is either a case where the Defendant has been delaying everything until the last minute and fighting what is really a rearguard action, or it is a case of gross incompetence on the part of her previous legal advisers, in which case she would have a remedy against them.

12.  I therefore see that I have no alternative but to dismiss this application.