WONG YUK TUNG v. WONG PO LING AND ANOTHER

HCMP 620/2017

[2018] HKCA 597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 620 OF 2017

(ON AN INTENDED APPEAL FROM HCA NO. 899 OF 2012)

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D E C I S I O N

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Hon Yuen JA (giving the Judgment of the Court):

Background

1.  On 30 September 2016, Recorder Lisa Wong SC (now Lisa Wong J) gave judgment in favour of the plaintiff in HCA899/2012 after trial.  The deadline for the defendants to lodge an appeal was 28 October 2016.

2.  On 17 March 2017 (well after the deadline to appeal had expired), the defendants filed a summons for extension of time to appeal.  This court gave directions for written submissions which were provided by the parties in August 2017. 

3.  On 28 February 2018, this court gave Judgment dismissing the defendants’ summons. At §18, we held that the defendants’ delay was substantial; at §§19-20, we found the delay was inexcusable; and at §§21-27 we explained why we thought that the chances of success of the proposed appeal were not sufficient for us to exercise our discretion to extend time even though there has been a substantial and inexcusable delay.

4.  On 6 March 2018, the defendants’ solicitors issued a summons for a “reconsideration” of our Judgment at an oral hearing inter partes.  In response to a query from this Court, they provided written submissions on 14 March 2018.

Discussion  

5.  In our view, there is no jurisdiction for this court to “reconsider” (at an oral hearing or otherwise) a judgment refusing to extend time to appeal. 

5.1.   The marginal note in the summons issued by the defendants’ solicitors indicated that they sought to rely on Order 59 rules 2A(7) and 14(1) of the Rules of the High Court.

5.2.   Order 59 rule 2A(7) is not applicable.  Rule 2A only governs applications to this Court “for leave to appeal”.  In that type of application, there is provision under rule 2A(7) for an aggrieved party to request a reconsideration of the determination.  However, the defendants’ application in March 2017 was not for leave to appeal, but for an extension of time to appeal. 

5.3.   The defendants’ application for extension of time to appeal was an interlocutory application which we determined by way of written submissions pursuant to Order 59 rule 14A.  By contrast with rule 2A, rule 14A does not contain a right for an aggrieved party to request a reconsideration of the determination.

5.4.   As a matter of completeness, we would mention that the other rule set out in the margin of the defendants’ summons, ie rule 14(1), also does not assist them.  This only provides generally that applications should be made by summons. 

6.  Finally, we would also add that even if this court had jurisdiction to reconsider in the present case, having read the written submissions provided by the defendants’ solicitors on 14 March 2018, we would not have acceded to the application.  The defendants sought to rely on a presumption of advancement in favour of the Mother, when that presumption was never raised at trial, and in any event, there was evidence before the trial judge which entitled her to find as a fact that the Mother had no beneficial interest of her own (discussed in our Judgment at §§23-25).

Order

7.  The summons filed 6 March 2018 is dismissed.  As the plaintiff has not taken any steps in relation to this summons, there will be no order as to costs.

Hon Poon JA:

8.  I agree with the decision of Yuen JA.