CHENG OI KUEN t/a WING YAN FASHION CO v. ONTREND (HK) LTD

HCMP 671/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 671 OF 2009

(ON AN INTENDED APPEAL FROM DCCJ NO. 1339 OF 2007)

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D E C I S I O N

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1.  The plaintiff was unrepresented at the trial which took place in December 2008 before Judge Mimmie Chan, although she was represented until July that year.  After trial, the plaintiff’s claim was dismissed and judgment was given in favour of the defendant on his counterclaim for US$21,498.  At trial, the principal issue was whether the shipment of what were described as the Female Order and the Male Order, which were agreed to be “shipped by 30 December 2005”, had been extended by agreement to mid March 2006 for the Female Orders and to end February 2006 for the Male Order.  On that issue, the learned judge after hearing the evidence of the witnesses of the plaintiff and the defendant preferred the evidence of the defence and held there was no agreement to extend time.  That was a finding of the primary fact.

2.  After the judgment, the plaintiff applied for leave to appeal.  Essentially the plaintiff was seeking to raise a new issue on appeal, namely, that the delay was issued by the defendant.  By a decision dated 23 March 2009, the learned judge refused leave to appeal.  This is what she said in para. 6:

“6.  At the trial of this action, no amendments were made to the Statement of Claim to raise delay or breach on the Defendant’s part; the Defendant did not indicate its consent to these issues being raised; and the Court did not permit any evidence to be slipped in, despite attempts to do so made by the Plaintiff.  Counsel for the Plaintiff now seeks, for the purpose of the appeal, to introduce such evidence and to argue that such evidence should have been referred to and considered by the Court when determining the issues.  I fail to see any merits of this ground of appeal.  The fact that a party is unrepresented at trial does not mean that the Court should on its own accord raise an issue not pleaded, nor permit such an issue to be raised (see Court of Appeal decision in 大昌發展集團有限公司 訴 李興盛 HCMP 2535/2007 handed down on 4 June 2008).”

3.  The learned judge also refused leave to appeal where the plaintiff sought to challenge primary findings of fact.

4.  The plaintiff now seeks leave to appeal from the Court of Appeal, and requests an oral hearing.  The plaintiff also seeks an order that the plaintiff be given leave to amend the statement of claim so that the new issue could be raised.  It is said in the written submission prepaid by Mr Hylas Chung, counsel for the plaintiff, that:

“The only fair and just method of disposing the matter was to adjourn the trial with costs be to the respondent and with leave to the plaintiff to amend the same claim accordingly.”

5.  I do not agree.  No application for leave to amend was made at trial.  Nor should it be assumed that if leave had been sought, it would have been granted.  The proposed appeal is totally unmeritorious.  I refuse leave.  I also make an order that under O. 59 r. 2A(8) that no party may under r. 2A(7) request the determination to be re-considered at an oral hearing of the parties.

6.  At my request, the parties have supplied their respective statement of costs for summary assessment under O. 62 r. 9A(1)(a).

7.  The plaintiff’s statement put their costs at $69,945.00 and the defendant $110,800.00.

8.  I find the costs staggering.  It would defeat the purpose of the civil justice reform if a simple application for leave to appeal results in such substantial costs.

9.  Having regard to the circumstances, in particular, the amount involved in this litigation and the simplicity of this matter, I assess the defendant’s costs at $20,000 made up of counsel’s fee of $10,000 and solicitor’s costs at $10,000.

10.  The application is dismissed with costs assessed at $20,000 to be paid by the plaintiff to the defendant.