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HCMP 2366/2012 AND HCMP 2367/2012
HCMP 2366/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 2366 OF 2012
(ON AN INTENDED APPEAL FROM HCCL NO. 21 OF 2011)
________________________
BETWEEN
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SINO TRIFONE LIMITED |
Plaintiff (Respondent) |
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and |
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FOND EXPRESS LOGISTICS LIMITED |
1st Defendant |
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FOND EXPRESS LOGISTICS INC. |
2nd Defendant (Applicant) |
________________________
AND
HCMP 2367/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 2367 OF 2012
(ON AN INTENDED APPEAL FROM HCCL NO. 20 OF 2011)
BETWEEN
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KAI MIN FASHION (HK) LIMITED |
Plaintiff (Respondent) |
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and |
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FOND EXPRESS LOGISTICS LIMITED |
1st Defendant |
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FOND EXPRESS LOGISTICS INC. |
2nd Defendant (Applicant) |
________________________
(Heard together)
| Before: Hon Fok, Barma JJA and McWalters J in Court |
| Date of Hearing: 22 May 2013 |
| Date of Judgment: 22 May 2013 |
________________________
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Hon Fok JA (giving the Judgment of the Court):
Introduction
1. On 31 January 2013, this court, sitting as a two-judge court[1], heard the 2nd defendant’s applications for an extension of time to appeal against the judgment of Mr Recorder Jat SC dated 28 September 2012 in two related actions.
2. In approaching the applications, the court applied the well-settled test addressed in Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125.
3. The court was not satisfied that the 2nd defendant had shown that the intended appeals enjoyed a real prospect of success and so the applications were dismissed. That decision was an exercise of discretion on the part of the court.
4. The 2nd defendant has issued notices of motion dated 25 February 2013 in the two actions (and a further amended notice of motion dated 26 February 2013 in the “Kai Min” action) seeking leave to appeal to the Court of Final Appeal against this court’s refusal of an extension of time to appeal. The notices of motion identify questions which are said to be of great, general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for decision.
The 2nd defendant’s representation
5. On 20 March 2013, the 2nd defendant purported to serve a notice to act in person. But, since the 2nd defendant is a company, it would be necessary for it to obtain leave of the Registrar to act by a director. On 8 May 2013, Master Wong refused such leave and so the company is unrepresented today.
6. By a letter dated 20 May 2013, Mr So Chak Chiu, a director of the 2nd defendant, has asked this court to grant him leave to represent the 2nd defendant at this hearing. Regardless of whether the Registrar has jurisdiction to grant leave to a company to be represented by a director in an appeal[2] (which is academic in light of the Registrar’s decision refusing leave), it is clear that we have no jurisdiction to make such an order: see RHC O.5 r.6(4).
7. Mr So’s letter asks in the alternative for an adjournment of the application to give time to the 2nd defendant to get legal representation. Since Mr So does not have leave to represent the 2nd defendant, his request does not amount to a properly made application on behalf of the company.
8. However, even if it were, we would decline to grant an adjournment of this hearing.
9. From as early as 27 March 2013, when Master Leong gave directions regarding the making of an application for leave to be represented by a director, the 2nd defendant has been aware of the need to obtain an order of the Registrar to permit such representation. It is self-evident from the fact that such an application might be refused that alternative representation by solicitors and counsel might be required. The application for leave to be represented by Mr So was refused on 8 May 2013, so the 2nd defendant has had two weeks in which to secure legal representation. It is incumbent on the 2nd defendant to act with reasonable diligence in this regard and there is simply no evidence before the court that the 2nd defendant has done so or indeed taken any steps to instruct lawyers to act on its behalf.
The notices of motion
10. In our view, the notices of motion are misconceived and wholly without merit.
11. The applications are for leave to appeal against a decision of this court in the exercise of its discretion to refuse an extension of time to appeal. That decision was made applying well-established principles and the notices of motion do not suggest that the principles were misapplied or that any question of great general or public importance is involved in the court’s decision refusing the extension of time.
12. Without the reversal of that refusal of an extension of time, the questions identified in the notices of motion, which go to the underlying merits of the Recorder’s judgment and assume (wrongly) the existence of a judgment of the Court of Appeal dismissing the appeals substantively, do not arise for decision.
13. Accordingly, we dismiss the notices of motion.
Costs
14. The 2nd defendant must pay the costs of the notices of motion to the plaintiffs. The plaintiffs ask that such costs be taxed on an indemnity basis and that we assess such costs summarily.
15. The Recorder awarded indemnity costs as from the date immediately following the period of 28 days after sanctioned offers made by the plaintiffs to the 2nd defendant, which sanctioned offers were lower than the amounts for which judgment was eventually entered.
16. Applying the reasoning in Montrio Ltd & Anor v Tse Ping Shun David, unrep., CACV 291/2011, 31 January 2013 at §§3-4, we see no reason why the plaintiffs’ costs should not be assessed on an indemnity basis since, if the sanctioned offers had been accepted, there would have been no trial, no proposed appeals and no applications by notices of motion for leave to appeal to the Court of Final Appeal. In any event, for the reasons explained, the notices of motion are misconceived and wholly without merit.
17. The plaintiffs have provided a statement dated 8 April 2013 of its costs for summary assessment, seeking costs in the sum of HK$63,575. No list of objections to that statement has been filed on behalf of the 2nd defendant.
18. On the broad brush basis appropriate to a gross sum assessment, we order that the 2nd defendant pay the plaintiffs the costs of the notices of motion summarily assessed on an indemnity basis in the sum of HK$60,000 within 7 days of today’s date.
(Joseph Fok)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
(Ian McWalters)
Judge of the
Court of First Instance |
Mr Patrick Chong, instructed by Eversheds, for the Plaintiffs (Respondents)
The 2nd Defendant (Applicant), absent
[1] Fok & Barma JJA.
[2] See, in this context: Kone Elevator (HK) Ltd v. Senfield Ltd, unrep., CACV 216/2002, 24 February 2003 per Woo JA at §§5-11; Hondon Development Ltd & Another v. Powerise Investments Ltd & Others, unrep., CACV 296/2003, 11 December 2003 per Yuen JA at §§9-16; and Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd, unrep., CACV 250/2010, 30 March 2012 per Chu JA at §§25-27.
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