TERRAFORM ENGINEERING CO. LTD. v. FULL WEALTH INVESTMENT LTD.

1998, No. 202
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Rogers, J.A. :

1. There are two applications before the Court in this matter which stems from an arbitration. The first is an application by the Respondents to strike out the Notice of Appeal. That summons was taken out on 3rd September and the other is a summons taken out on 18th September that leave to appeal to the Court of Appeal should be granted.

2. The matter arises in this way.

3. There was an arbitration and an appeal to the Court of First Instance was heard earlier this year in June. On 16th June, Findlay, J. allowed the appeal against the arbitration and his order was sealed on 8th July. Time for appealing that order would therefore expire on 19th August. A Notice of Appeal was filed on 18th August but in filing that the prospective Appellants appear to have overlooked the provision of section 23(7) of the Arbitration Ordinance. Cap. 341 which reads that :-

"No appeal shall lie to the Court of Appeal from a decision of the Court on an appeal under this section unless the Court or the Court of Appeal gives leave."

4. The Respondents drew the attention of the prospective Appellants to this provision on the 2nd September. They pointed out that they would have no alternative but to apply to strike out the Notice of Appeal. They did that on the 3rd September. In the letter, they also pointed out that the procedure for obtaining leave to appeal is set out in Order 59 rule 14 and they suggested that O.59 r.14(4) requires that where leave to appeal may be granted either by the Court below or the Court of Appeal, the application should be made first to the Court below and then the Court of Appeal.

5. I would also note the provisions of O.59 r.14(2) which provide that if application is made to the Court of Appeal, it has to be made ex parte in writing. The matter is then subject to various provisions in the Rules depending on whether or not leave is granted. There is an opportunity to the Respondents to object if leave is granted.

6. The prospective Appellants answered the Respondents' objection by the issue of the summons of 18th September whereby they simply applied, not ex parte but by ordinary summons before the Court, for leave to appeal.

7. It is quite clear on the authorities in two cases which have been drawn to our attention, the latest of which is the case of Cumbes v. Robinson (1951) 1 All E.R. 661 that leave must be obtained before an appeal can be brought. In a short judgment at p.662, Somervell L.J. pointed out that an appeal does not lie under a similar provision if leave to appeal has not been obtained.

8. So, prima facie, this appeal is incompetent because, on any footing, when the Notice of Appeal was filed, no leave to appeal had been obtained either from the Court below or from this Court. The prospective Appellants before this Court submit that O.59 r.14(4) does not bite. They say that because of the wording which is as follows :-

"Wherever under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impractical to apply to the court below."

the sub-rule does not apply to their case because their appeal is an appeal under the Arbitration Ordinance and not under the rules.

9. During the course of argument, I asked Mr. Bell who has put forward everything he could on behalf of the Appellants, if he could give a specific instance of a situation to which on his construction he says sub-rule (4) would apply. Other than making general submissions he was unable to do so. In my view, sub-rule (4) applies to applications which have to be made, specifically of course in appeals because it appears in O.59 which relates to appeals and sub-rule (4) covers those appeals which are the subject of O.59. O.59 governs any appeal, if there be one, under section 23(7) of the Arbitration Ordinance and in my view, the wording of the rule is quite clear: in the first instance, any application for leave to appeal should be made to the Court below. There is good sense for that because the Court of Appeal, if it has to be troubled with the question of application for leave to appeal, would naturally wish to know the views of the Judge in the Court below. That admittedly has not been done in this case and indeed the application by summons by the Appellants for leave to appeal was in the wrong form and was out of time.

10. On that aspect, Mr. Bell has said that it is open to the Court to extend time. Extension of time is a matter of judicial discretion. Judicial discretion can only be exercised where either the facts are plain or facts are put before the Court which would constitute grounds for exercising the discretion. That has not been done in this case. The facts are certainly not plain enough whereby this Court could say of its own motion that the discretion should be exercised to extend time. Nothing has been put in, either on affidavit or even in submissions, which would constitute grounds for our extending time today.

11. In my view, therefore, first of all, this Notice of Appeal is incompetent because time for appealing has expired and no leave to appeal has been granted and any application for leave to appeal has been made on the wrong basis and without the necessary application for extension of time. I see no alternative therefore but to strike out the Notice of Appeal.

12. We have not heard arguments on the merits. In my view, it might be open to the prospective Appellants, if they saw fit, to renew an application for leave to appeal with necessary requests for extension of time but that would have to be made in the proper manner backed by proper evidence and submissions.

13. I would therefore strike out this Notice of Appeal accordingly. It also follows therefore that the Appellants' application for leave to appeal would have to be dismissed.

Mayo, J.A. :

14. I agree with what Rogers JA has said. There is nothing that I can usefully add.

Nazareth, V.-P.:

15. I also agree. The notice of appeal is accordingly struck out and the application for leave to appeal is dismissed.