LAU CHI CHING KAREN alias LAU LAI YIN v. OCBC WING HANG BANK LTD (formerly known as WING HANG BANK LTD)

HCMP 2517/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2517 OF 2014

(ON AN INTENDED APPEAL FROM HCA NO. 103 OF 2014)

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DECISION

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Hon Chu JA (giving the decision of the Court of Appeal):

1.  On 5 January 2015, this Court (Chu JA and Poon J) handed down a judgment dismissing the plaintiff’s application for an extension of time to appeal the decision of Deputy High Court Judge Yee (“the Judge”) of 15 August 2014, ordering the striking out of the Amended Statement of Claim in HCA 103 of 2014 (“the Action”) and the dismissal of the Action with costs. We also ordered the plaintiff to pay the defendant’s costs summarily assessed at $45,000.

2.  On 30 January 2015, the plaintiff issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal against this court’s judgment.  The defendant opposes the application.

3.  On 13 February 2015, this court directed that the application be determined on paper and gave directions on the lodging of submissions. Pursuant to the directions, both parties had lodged their submission.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides:

“An appeal shall lie to the Court—

(b) at the discretion of the Court of Appeal or the Court, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision;”

5.  The Notice of Motion, consisting of 25 paragraphs, has not set out any question of law to be determined by the Court of Final Appeal. In a nutshell, it said this court in dismissing her application had not taken into account the background facts and also “the Law of cause and effect”.  After setting out what was said to be the background facts and the plaintiff’s personal background facts, the Notice of Motion set out under the heading “My personality traits”, 16 paragraphs of responses to paragraphs 14 to 18 of this court’s judgment.  In those paragraphs in the judgment, we addressed an allegation of breach of a verbal contract which the plaintiff raised in her notice of appeal, but which had neither been pleaded nor raised in the opposition to the striking out application before the Judge, and concluded, for the reasons given, that this new allegation is bad and cannot salvage the plaintiff’s claim.

6.  The plaintiff in her written submissions put forward three documents and three authorities to support her application.

7.  In our view, none of the matters advanced by the plaintiff to support her allegation of breach of a verbal contract is arguable.  The plaintiff has failed to identify any question of great general or public importance that justifies granting leave to appeal under the first limb of section 22(1)(b).

8.  As to the second “or otherwise” limb under section 22(1)(b), the Court of Final Appeal has established that the granting of leave under this limb is an exceptional course: see Chao Keh Lung v. Don Xia (2004) 7 HKCFAR 260, at para.9.  

9.  The plaintiff’s application does not come anywhere near the threshold for granting leave under the “or otherwise” limb.

10.  For the above reasons, the plaintiff’s Notice of Motion is dismissed.  

11.  Applying the usual rule of costs follow event, the plaintiff having failed in her application, will have to pay the defendant’s costs of this application.  The defendant asked for the costs to be summarily assessed on indemnity basis on the ground that the application is completely hopeless.

12.  We agree that this is a hopeless application. Both the Judge and this court had in our respective judgments already explained why the plaintiff’s claim and intended appeal against the striking out order are without merits. In the circumstances, we accept an indemnity costs order should be made against the plaintiff.

13.  The defendant had lodged a summary of costs for summary assessment on indemnity basis.  The handling solicitor claimed 12 hours at the hourly rate of HK$6,000 for dealing with the application.  As observed above, this is a plainly hopeless application that involves very little paper.  The law governing application for leave to the Court of Final Appeal is well settled. We do not consider it is necessary or reasonable for the solicitor to incur this amount of time and to refer to in excess of ten authorities.  Taking a broad-brush approach, we assess the costs of the defendant at HK$40,000.