KONE ELEVATOR (HK) LTD v. SENFIELD LTD

CACV 216/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 216 OF 2002

(ON APPEAL FROM DCCJ 4544 OF 2001)

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REASONS FOR JUDGMENT

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Hon Woo JA (giving the reasons of the Court):

1. There were two applications before us, namely, the defendant company's application in person taken out on 14 March 2003 for leave to appeal to the Court of Final Appeal against this Court's judgment given on 24 February 2003 and the plaintiff's application by summons dated 13 May 2003 for security for costs if the defendant's leave application is granted.

2. By the action in the District Court, the plaintiff claimed damages for the defendant's repudiation of an agreement for the sale and installation by the plaintiff of a MonoSpace lift (without a machine room) at the defendant's premises. The District Judge gave judgment for the plaintiff in the sum of $256,250, together with interests and costs, against the defendant. The defendant appealed, which resulted in our judgment of 24 February 2003, affirming the District Judge's judgment.

3. Before this Court heard the appeal, the defendant had applied to a master for leave to allow its director, Mr Choy Bing Wing, to represent it in the appeal, but the application was refused. Before us on 18 February 2003, Mr Choy made an oral application to us for him to represent the defendant in the appeal. We informed him that we had no jurisdiction to entertain the application and we proceeded to ask him if an application would be made for the appeal to be adjourned. Mr Choy told us that since the defendant could not be represented by him he had no right to represent the defendant to make any application, let alone one for an adjournment. He left the court on his own accord. In our judgment dated 24 February 2003, we gave the reasons for our holding that we have no jurisdiction to entertain an application by a body corporate for leave to be represented by one of its directors. We also dealt with the grounds of appeal against the District Judge's judgment that were raised in the notice of appeal dated 24 April 2002 and ordered that the appeal be dismissed with costs.

4. In respect of the present application for leave to appeal to the Court of Final Appeal, apart from filing a notice of intended application for leave to appeal dated 4 March 2003, the application for leave to appeal dated 14 March 2003 and an Affirmation of Choy Bing Wing affirmed on 23 June 2003, apparently in support of the application, the defendant had not made any application to the Registrar of the High Court for Mr Choy or any of its directors to represent it in this application. The application was taken out by the defendant in person. This was confirmed by Mr Choy who appeared before us on 10 July 2003 purporting to act on behalf of the defendant. Similar to what we did on 18 February 2003, we told Mr Choy that we had no jurisdiction to entertain an application for the defendant to be represented by him. The detailed reasons for our lack of jurisdiction can be found in our judgment dated 24 February 2003.

5. We refused to allow Mr Choy to address us on behalf of the defendant and proceeded to strike out the defendant's application for leave to appeal to the Court of Final Appeal with costs. The reason for our doing so is that the application was made without the necessary requirement of leave under Order 5, rule 6 of the Rules of the High Court having been complied with. It was not properly taken out when the defendant was not properly represented. It was an irregularity and we struck it out.

6. In the result, it was not necessary for us to deal with the plaintiff's summons dated 13 May 2003. Save for an order nisi that the plaintiff do have the costs of that summons, we make no further order.