HONG KONG FINANCE COMPANY LTD v. WAH FUNG FOREST RESOURCES LTD AND OTHERS

HCA 1694/2020

[2023] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1694 OF 2020

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D E C I S I O N

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1.  This is the Summons of the 2^nd and 3^rd Defendants (“Defendants”) filed on 21 June 2023 for leave to appeal against the dismissal by this Court of their Summons (filed on 21 December 2022) (“A/E Summons”) to adduce additional evidence in the form of the 2^nd affirmation of Wong Chor Cheung for the purpose of their appeal against an Order of Master Rita So dated 24 June 2022 (“Master Appeal”).

2.  Four sets of written submissions have been filed by the parties for this application, 2 from the Plaintiff and 2 from the Defendants. The parties have agreed to the paper disposal of this application, and I agree that it is appropriate to do so.

3.  The Master Appeal was heard and determined by this Court on 7 June 2023: [2023] HKCFI 1548 (“Decision”). It involved an appeal by the Defendants to reverse the learned Master’s decision to (a) grant default judgment against them in favour of the Plaintiff and (b) dismiss their application for leave to file Defence out of time.

4.  The A/E Summons was dealt with in the Master Appeal as part of the consideration on whether the 3^rd Defendant had an arguable Defence: Decision, [48]. In the Defendants’ supplementary skeleton argument dated 21 August 2023, it was accepted that the additional evidence related only to the case of the 3^rd Defendant and this application is only made for the same.

5.  There is in fact an appeal on foot by the Defendants against the Decision which was filed on 11 July 2023. The substantive appeal, together with the fact that the additional evidence was dealt with as part of the Decision, provide a good reason for acceding to this application.

6.  However, it should be made clear that leave is only granted on the 2^nd limb of s.14AA(4) of the High Court Ordinance, Cap 4: there is some other reason in the interests of justice why the appeal should be heard.

7.  I do not believe that the 1^st limb (reasonable prospect of success) can be made out. First, the arguments made on behalf of the 3^rd Defendant that the additional evidence is relevant to the issue of lack of written consent by the Plaintiff (as mortgagee) to the tenancy of the 3^rd Defendant based on estoppel is a new point not advanced at the Master Appeal. However, it may be said that it is a matter of law which the Court of Appeal is entitled to consider.

8.  Second, it is not at all clear from the 3^rd Defendant’s submissions, and no authority has been cited in support, how it was entitled to rely on or benefit from the alleged representation made to its landlord (the 1^st Defendant) by the Plaintiff: see paras 9 to 12 of the 3^rd Defendant’s supplementary skeleton argument.

9.  For these reasons, this application is granted. I order that the costs of this application be in the cause of the substantive appeal.