HCA 2596/2017
[2021] HKCFI 3223
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2596 OF 2017
________________________
BETWEEN
| | TSUI YUN BUN BARRY | Plaintiff |
| | and | |
| | LAW WAN TUNG (formerly known as LAW SIU YI BIBY) | Defendant |
| | and | |
| | ERWIANA SULISTYANINGSIH | Intended Intervener |
________________________
Before: Mr Recorder Stewart Wong SC
Dates of Hearing: 21 April 2021 and 29 September 2021
Date of Decision: 1 November 2021
________________________
D E C I S I O N
________________________
A. INTRODUCTION
1. There are before me the following summonses (together, “the Summonses”):
(1) Law’s summons dated 18 December 2019 applying for leave to appeal my decision dated 5 December 2019 (“the Decision”[1]);
(2) Law’s summons dated 13 January 2020 applying out of time for variation of the costs order nisi I made in the Decision;
(3) Tsui’s summons dated 5 January 2021 applying for an extension of time for him to appeal against the Decision;
(4) Law’s summons dated 28 January 2021 applying for an extension of time for her to appeal against parts of the Decision.
2. The Summonses come before me as a result of the Decision, as well as my decision dated 4 December 2020 (“the Further Decision”[2]). This decision is to be read together with the Decision and the Further Decision.
3. In the Decision, I:
(1) gave my reasons for dismissing an application made by Law to recuse myself. See [14]-[28] of the Decision;
(2) found that it was not necessary for ES to be joined as a party for her to have the locus to apply to discharge the Charging Order Absolute. I made no order on paragraph 1 of the Amended Summons of ES applying to join this action as a party. See [29]-[41] of the Decision;
(3) made an order discharging the Charging Order Absolute and vacating the registration of the Charging Order Nisi and the Charging Order Absolute (together “the Charging Order”) at the Land Registry. See [42]-[60] of the Decision.
(4) made an order nisi that Tsui and Law are to be jointly and severally liable for the costs of the appeal of ES before me, and of the Amended Summons before the Master, to be summarily assessed by me.
4. Having applied for leave to appeal the Decision by summons dated 18 December 2019, before the same could be decided[3], as stated at [11] of the Further Decision, by letter dated 14 October 2020, solicitors for Law suggested that leave to appeal the Decision might not be required, and wrote in to ask for my direction, pursuant to Order 59, rule 21(3), of the Rules of the High Court[4], whether leave to appeal was required.
5. By the Further Decision, I ruled that leave to appeal was required for the matters stated at [3(1)] and [3(2)] above, but not for that stated at [3(3)] above. That however means that the time for Law to appeal the matter stated at [3(3)] above had by then expired, thereby prompting the summons referred to at [1(4)] above. That apparently also prompted Tsui to issue the summons referred to at [1(3)] above, which says:
“本人原以為要有上訴許可，但現在知道不需要，現在門檻降低了，所以想申請上訴，但已經過時，希望法官大人可以批准過期上訴”.
No draft Notice of Appeal is attached.
6. This summons of Tsui gives his address as the Property, with a mobile telephone number (“the Stated Number”). It is supported by an affirmation of Tsui dated 5 January 2021 which states:
“申請過時上訴”.
7. The Summonses were fixed to be heard by me on 21 April 2021.
8. The hearing of the Summonses on 21 April 2021 was adjourned in circumstances which I shall explain below. The hearing is re-fixed for 29 September 2021.
9. In the meantime, a petition for Law’s bankruptcy has been presented. When the Summonses are heard by me on 29 September 2021, Mr Ching Ming Yu informs me that while no bankruptcy order has been made against Law, he no longer has instructions to act for her. He appears in Court because he is still on the record as Law’s solicitors. I thank Mr Ching for appearing in such circumstances but of course he is not in a position to, and does not, make any submissions before me. Instead, he invites me to refer to the “speaking notes” he filed in support of Law’s summonses for the hearing in April, when he had instructions to act for Law. Tsui also informs me that he adopts the submissions of Law in the speaking notes. I shall therefore consider the Summonses by reference to those submissions, as well as those of Mr Ko, counsel for ES.
B. THE ADJOURNMENT
10. The adjournment of the hearing on 21 April 2021 was granted by me because the skeleton submissions of Mr Ko and the authorities had not been served on Tsui until immediately before the hearing on that date. At that hearing Tsui said that he was not prepared to respond to the submissions and would require more time to prepare. To be fair to Tsui, I granted the adjournment, after expressly warning Tsui that there might be adverse costs implications arising from the adjournment.
11. As the question of costs thrown away by the adjournment arises, I directed those acting for ES, and Tsui, to file affidavits/affirmations to explain the matters pertinent to the (attempted) service of the skeleton and authorities relied upon by ES on Tsui.
12. In his third affirmation dated 22 April 2021, Mr Siu Kit Chung (“Mr Siu”), a solicitor employed by the firm acting for ES (“BCC”), as assigned by the Director of Legal Aid, states as follows[5]:
(1) The basis of Tsui’s application for extension of time to appeal was not clear to ES because they were not stated in his summons or affirmation in support, nor did Tsui file any submissions. ES, being the respondent to the application, was in no position to speculate his grounds.
(2) Law’s speaking notes and list of authorities were served on ES at 6:05 pm on 19 April 2021. They should have been served on 16 April 2021 and so were late.
(3) ES’s skeleton and list of authorities were prepared to assist the Court and primarily in response to Law’s speaking notes and authorities. Mr Siu also complains about the late filing (on 19 April 2021 at 12:28 pm) of an additional affirmation by Law (being the fifth affirmation of Mr Ching) and the late response to the draft hearing bundle index.
(4) ES could not have prepared her skeleton in advance, and used her best endeavours to prepare her skeleton and list of authorities in the late evening of 19 April 2021, which was lodged with the Court and served on Law in the morning of 20 April 2021.
(5) Although Tsui’s summons and Law’s summonses are separate, ES still sought to serve her skeleton and list of authorities on Tsui “for his reference”. However, it was by then too late to seek to serve them on Tsui by post. Nor was insertion of the same into the letter box of the Property feasible as Mr Siu had been informed by a clerk of BCC that the security personnel there did not allow them to do so.
(6) At about 10 am on 20 April 2021, Mr Siu called the Stated Number from his office. Tsui answered the call and confirmed his identity. Mr Siu identified himself, told Tsui that he was calling about the hearing on 21 April 2021, and said that ES wished to serve documents on him at the Property. Tsui asked for reasons for the lateness, to which Mr Siu said Tsui and Law were obliged to serve their submissions first. Tsui did not serve any while Law’s speaking notes were only served the previous evening. Tsui said he was away and would not return to his residence. Mr Siu asked if he would be able to collect the documents at BCC’s office and he said he was in the New Territories. Mr Siu then asked for Tsui’s email address but he refused to provide it, saying that he rarely checked his email. Tsui said he would return a call later but he did not.
(7) Mr Siu then prepared PDF copies of the documents and sent them to the Stated Number by WhatsApp. Mr Siu produces a photo of his phone which shows that two “checkmarks” appear against the PDFs sent to the Stated Number on WhatsApp and which, according to Mr Siu, “supposedly imply that they were delivered”.
13. Despite my order that he was to file his affirmation regarding the facts pertinent to the issue of service within 14 days of the service of the affidavit/affirmation regarding service on behalf of ES (and not just that he was given leave to file an affirmation if he so wished), which I explained to him clearly at the hearing on 21 April 2021, and despite the fact that Tsui did apply, by way of summons dated 12 May 2021, for extension of time to comply with my order[6] and which application was granted by DHCJ MK Liu on 3 June 2021 extending the time for compliance to 14 June 2021, Tsui, acting inexcusably and in blatantly disregard of my order and that of DHCJ MK Liu, did not file any such affirmation until 28 September 2021, one day before the adjourned hearing. I disapprove of such conduct of Tsui in the strongest term.
14. Notwithstanding the lateness and lack of any explanation therefor, to be fair to him, I grant Tsui leave to file his affirmation out of time.
15. In that affirmation:
(1) Tsui agrees that he did receive a call on the Stated Number from someone said to be from the solicitors acting for ES in the morning of 20 April 2021. He was in Hong Kong at the time. As the solicitors had not contacted him by telephone directly before, he was not sure about the real identity of the caller, and so he did not provide his whereabouts for the purpose of receiving the documents.
(2) Tsui says that the Stated Number does not have WhatsApp function.
(3) As he cannot use his email account in the Mainland, he has not added his email address to the summons as a means of communications.
(4) All documents were served on him in the past by post or in person, and never by WhatsApp, and he did not receive any documents for the hearing before 21 April 2021.
16. Given the fact that Tsui filed nothing for the hearing on 21 April 2021, that BCC only sought to serve on Tsui the skeleton and authorities prepared primarily in answer to the speaking notes of Law, in the light of the timeline stated by Mr Siu, is, in my judgment, understandable.
17. On the other hand, I do find the attitude and actions of Tsui on 20 April 2021, unhelpful, uncooperative and even obstructive. He does not say that he was unaware of, or did not remember, the hearing of his own application the following day. Even if he was wary about the identity of the maker of the call to the Stated Number (the fact of which he admits), any responsible person would have at least found out the telephone number of the firm of solicitors from some reliable source (for example, from documents previously served on him), called back, and arranged service.
18. Tsui says that as that was happening on the day before the hearing and given that he was acting in person, he would not have sufficient time to read and understand the documents and to prepare accordingly. That, in my judgment, is not a responsible and proper attitude: without seeing the documents, how could he say whether he would or would not have sufficient time to deal with them? He should at least make an effort to receive the documents and see if he would be prejudiced if the hearing on 21 April 2021 proceeded. There is also no explanation of why Tsui did not provide his email address to the caller. The fact that he did not usually check the email does not mean that that should not be so used in the circumstances. In any event, on his reasoning, even if the documents were indeed served on him on 20 April 2021, he would not have sufficient time to prepare to deal with them and would need an adjournment anyway. But the fact that solicitors for ES were only seeking to serve the documents on him as late as 20 April 2021 was not the fault of ES or those acting for her, but because Tsui, being the applicant, did nothing about his own case at all. The fact that he was acting in person cannot justify his conduct.
19. For the above reasons, I am of the view that Tsui must pay the costs of ES occasioned or thrown away by the adjournment of the hearing on 21 April 2021, to be summarily assessed by me and payable forthwith by Tsui. As for Law, although Mr Ching asked me to note, which I do, that the adjournment was not made at his application, I did give him the opportunity to proceed with Law’s summonses on 21 April 2021, but he suggested that it would be preferable to have all the Summonses dealt with together. In the premises, the fair order is that there shall be no order as to the costs of Law occasioned or thrown away by the adjournment.
C. LEAVE TO APPEAL
20. As I ruled in the Further Decision, Law requires leave to appeal from my decisions stated at [3(1)] and [3(2)] above. At the hearing on 21 April 2021, Tsui has confirmed to me that he is not seeking leave to appeal from those decisions.
21. The law on leave to appeal is well settled. The proposed appeal must have a reasonable prospect of success, which involves the notion that the prospects of succeeding must be “reasonable” and therefore more than fanciful, but without having to be “probable”. The applicant would need to show more than just an arguable case, but an appeal that has merits and ought to be heard, although it does not need to demonstrate that the appeal will probably succeed.[7]
22. A draft Notice of Appeal (“DNOA”) has been filed on behalf of Law as an exhibit to the fourth affirmation of Mr Ching dated 8 April 2021, which I shall consider together with the speaking notes of Mr Ching.
C1. Recusal
23. I refer to [14]-[28] of the Decision as to the basis of the recusal application and my reasons for dismissing it.
24. In the DNOA at [17], the following is said:
“The judge erred in not recusing himself when the judge showed apparent/actual bias by directing copies of the said Judgment and the decision on costs dated 2nd March 2018 both made by the judge under HCA2256/2015 which contained adverse findings against the Plaintiff and the Defendant to be included in the hearing bundles after reading the skeleton submission of the counsel for the Intended Intervener, but before receiving or reading the skeleton submissions of the Defendant or the Plaintiff, and when the counsel for the Intended Intervener did not see the need for them, and having due regard to all the relevant circumstances and particularly the Decision of Mr. Recorder Stewart Wong SC dated 5th December 2019”.
25. This draft ground is misleading in that it suggests that it was I who wanted to include in the hearing bundle decisions of myself which contain adverse findings against Tsui and Law, when even counsel for ES “did not see the need for them”. That is, it appears that it was me who raised adverse points against Tsui and Law. I also note the speaking notes of Mr Ching which also suggest that it was I which brought the HC Judgment and the decision of costs into the hearing when ES had not. Mr Ching refers to a note of reply from Mr Ko which mentioned the apparent insolvency of Law in an “ambush” against her. The implication is that the issue of the apparent insolvency of Law was prompted by my direction, and was an argument not taken on behalf of ES before.
26. However, as I explained in the Decision at [20] and [23], both the affirmation of Mr Siu made in support of ES’s Summons before the Master, and Mr Ko’s skeleton on her behalf, filed before I made the direction for the include of the HC Judgment and the decision on costs, made references to the HC Judgment. What I did was only to direct copies of the HC Judgment, already mentioned and relied upon by those acting for ES, and the decision on costs (for the sake of completeness), to be included.
27. In his skeleton filed before my direction for inclusion of the HC Judgment and the decision on costs, in a section titled “The Defendant was probably insolvent”, Mr Ko referred to the HC Judgment and various other matters to support an argument that Law was probably insolvent.
28. I therefore do not see how any submissions on the solvency of Law, by reference inter alia to the HC Judgment, can be said to be prompted by the direction or constituted an ambush.
29. In my judgment, this allegation of apparent bias is, for reasons I gave in the Decision, absolutely unmeritorious and indeed it is an outrageous allegation to make. There is simply no prospect of success on appeal at all and I will not dignify it by considering it further.
C2. Standing of ES
30. I refer to [29]-[41] of the Decision as to why I held that ES did have the standing to make the application to discharge the Charging Orders without the need to be joined as a party to this action.[8]
31. In the DNOA, Law argues that I erred in failing to give due regard to the decisions in Banque Nationale de Paris v Montman Ltd[9] and
Nationwide Building Society v Wright[10] in finding that ES was a “person interested” in the Property for the purpose of section 20B(4) of the High Court Ordinance[11] and a “person interested in the subject-matter of the charge” for the purpose of Order 50, rule 7(1), of the Rules of the High Court.
32. I dealt with Montman at [37]-[39] of the Decision. In my judgment, as I read it, for reasons that I gave at [38] of the Decision, Montman in fact supports ES’s case, and is in this respect in line with the judgment of Fox LJ[12] in Harman v Glencross[13]. In his speaking notes, Mr Ching criticises me for distinguishing Montman without any good reasons, but he has not really dealt with the reasons I gave at [39] of the Decision. The judgment of Sir John Chadwick[14] in the Court of Appeal in Wright adds nothing as his Lordship simply agreed at [24] that Montman was correctly decided in the circumstances of that case.
33. More importantly, in my judgment, Law has failed to raise any arguments with any reasonable prospect of success that the distinction drawn in Harman v Glencross between a person interested in a property, and having an interest in a property, is not a valid one, or that ES does not fall within the former. In his speaking notes, Mr Ching seeks to distinguish that case from the present but in my judgment it is the said distinction drawn in that case as a matter of principle which matters and which is applicable in ES’s favour.
34. In any event, my reasons do not rest solely on Harman v Glencross and are also based on my analysis of the relevant provisions: see [30]-[35] of the Decision.
35. The DNOA also argues that I erred in failing to have regard to the effect and implication of section 45 of the Bankruptcy Ordinance[15] which provides that Tsui would be entitled to retain the benefit of the Charging Orders in the event that Law is bankrupted, and when ES herself could have but failed to take any enforcement action against Law or to petition for her bankruptcy.
36. The fact that Tsui would have retained the benefit of the Charging Orders under section 45 of the Bankruptcy Ordinance is in fact a reason against the making of a charging order in favour of one judgment creditor when there is a doubt on the solvency of the judgment debtor, and is a matter which must be disclosed by the judgment creditor when he applies for a charging order nisi on an ex parte basis in the proper discharge of his duty to make full and frank disclosure to the Court. I do not understand how section 45 assists Law.
37. I also do not understand how the fact that ES had not taken any enforcement action by the time of Charging Orders, or when she applied to set them aside, can affect her standing. The law has provided for the rights of creditors of a person and in the case of charging orders, where the person is, or is probably, insolvent, it is not a question of who gets to the Court first. The fact that ES did not make a claim for Law’s interest in the Property in satisfaction of the judgment debt owed to her (unlike the wife in Harman v Glencross) does not in itself means that she was not or is not interested in the Property, under the principle I enunciated at [33] of the Decision, as supported by Harman v Glencross and indeed Montman. Indeed, the fact that ES could have but did not make a claim for Law’s share of the Property in satisfaction of the judgment debt shows that she did have an interest in the Property in the sense I described at [33] of the Decision – otherwise she could not have made any claim at all.
38. In my judgment the proposed appeal against my holding on ES’s standing has no reasonable prospect of success.
D. EXTENSION OF TIME TO APPEAL
39. This concerns my decision to discharge the Charging Order: see [42]-[60] of the Decision. I discharged the Charging Order Nisi on the ground of material non-disclosure (“MND”) concerning the insolvency or probable insolvency of Law when Tsui applied ex parte for it, and with the Charging Order Nisi discharged, so must the Charging Order Absolute. I refused to regrant the Charging Order as Tsui had failed to show that ES would not be unduly prejudiced by a grant.
40. In Progetto Jewellery Co Ltd v Lau Chiu Ying[16], Lam VP (as he then was) said:
“ The Court’s approach in considering an application to extend time to appeal is well settled. In Tang Chai On v Tang Sing Ki, [2016] 5 HKLRD 104, this Court held at [9] (citing Lee Chick Choi v Best Spirits Co Ltd, HCMP 371/2015, [2015] HKEC 899 (CA) at [19]):
‘The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party of the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.’”
41. A reasonable prospect of success is therefore a minimum threshold irrespective of the other factors. In my view Law and Tsui (who adopts Law’s submissions) have failed to satisfy that threshold.
42. The DNOA contains thirteen paragraphs regarding the proposed appeal on my decision to discharge the Charging Orders. They do not have any reasonable prospect of success.
43. First, it is said that I erred in failing to find that ES had the burden to prove, which she failed to discharge, that Law was probably insolvent and that she was likely to be unduly prejudiced by the making of the Charging Orders.
44. However, the issue is not so much whether Law was in fact insolvent or probably so, but whether Tsui had discharged his duty to make full and frank disclosure when making the ex parte application. For reasons stated at [47]-[51] of the Decision, Tsui in fact knew that Law was actually insolvent at the time, and, apart from Tsui’s admission, the objective facts, in the light of the HC Judgment which I handed down two days earlier, would also indicate that it was probable that Law was insolvent, and in failing to disclose that to the Court, Tsui had failed to discharge his duty to make full and frank disclosure, which justified the discharge of the Charging Orders.
45. Second, it is said that MND was never a ground relied upon by ES in her Summons (or Amended Summons), and in any event I dealt with the question of MND in a manner which was beyond the scope of how counsel for ES argued the point, notwithstanding the objections raised on behalf of Law.
46. These points have no merits.
47. While the Amended Summons of ES does not refer to MND as a specific ground to discharge the Charging Orders, in his affirmation made in support of the application, Mr Siu says:
“There is reasonable suspicion that the Plaintiff had failed to provide a full and frank disclosure of the encumbrances and the creditors in respect of the Subject Property in obtaining the Charging Order. Accordingly, the Court has been misled into granting the Charging Order.”
48. Mr Ko’s skeleton also raises the question, in the context of possible MND, that Tsui might not have disclosed the full background to the Court, including the fact that ES was a judgment creditor of Law and whether she should be added as a party. Finally, in his written reply submissions, Mr Ko does raise the three matters I referred to at [44] of the Decision which he says would cause the Court to require notice of the application to be given to ES had it been alerted to them.
49. In my view, the affirmation of Mr Siu and the skeleton and reply submissions of Mr Ko sufficiently brought into issue the question of solvency or probable solvency of Law in the context of MND. There is no unfairness to Tsui in dealing with the question of his own MND in such circumstances. As for Law, a fortiori, I cannot see any unfairness either but the more fundamental point is that it was not her MND that I was concerned with, which was the reason to discharge Charging Order made against her share of the Property. It is difficult to understand how she was or is in a position to talk about any unfairness or prejudice in this context, when there is none against her in any event.
50. In the DNOA, Law also argues that the charging order regime does not require a judgment creditor to inquire, or to provide information as to, whether the judgment debtor has any assets or their value, or whether the judgment debtor is probably or is in fact insolvent. What is required by Order 50 is to give the name of the judgment debtor and of any creditor of his whom the judgment creditor can identify.
51. I did not, in my Decision, purport to lay down any general duty of a judgment creditor seeking a charging order. What I did was to say, in the actual circumstances of this case, in particular my findings in the HC Judgment handed down two days earlier, and Tsui’s own knowledge of Law’s actual insolvency, whether Tsui had properly discharged his duty to make full and frank disclosure.
52. The rest of the DNOA raises questions about whether Law was indeed insolvent or probably insolvent, and whether ES has shown that she would be unduly prejudiced by the making of a charging order against Law’s share of the Property. As I said above, whether she was or was not probably insolvent as at the time of the ex parte application was and is not the primary issue, but whether Tsui ought to have raised it with the Court in the proper discharge of his duty to make full and frank disclosure. For reasons I gave in the Decision, he ought to have done so, especially in the light of the fact that not only that it was in all the circumstances obvious to think that Law might well be insolvent, as Tsui admitted (see the Decision at [11] and [51]), he knew that as at the time of his application for a charging order Law did not have sufficient means of her own to pay all her debts.
53. The DNOA argues that I should not have taken into account the admission of Tsui that Law was insolvent as there was no evidence that Tsui knew or ought to have known the financial positions, debts or assets of Law. But there was no evidence that he did not know either. Tsui was able to say that as at the time of his application for a charging order Law did not have sufficient means of her own to pay all her debts without qualifications and that was not disclosed at the ex parte stage. In any event, I did analyse the matter at [47]-[50] of the Decision in the context of MND without reference to the admission.
54. The DNOA also asserts that I was wrong in considering the findings in the HC Judgment to be binding on the parties. As Tsui, Law and ES are all parties to the HC Judgment, how is it that the HC Judgment does not bind them escapes me. The fact that Tsui chose not to participate in the trial leading to the HC Judgment cannot change the position.[17]
55. In any event, in my judgment, I referred to Tsui’s admission that Law was insolvent when he applied for the Charging Order Nisi. However, in the context of having discharged the Charging Order for MND and considering whether to regrant, so that the burden was on Tsui to satisfy me that a charging order ought to be granted, and that ES would not be unduly prejudiced, I did not proceed on the basis of any finding that Law, with the half share of the Property reverted to her by reason of the HC Judgment, was in fact insolvent. Rather, I held that, because of a lack of evidence as I discussed at [54]-[58] of the Decision, Tsui has failed to so satisfy me.
56. In my judgment, the grounds stated in the DNOA, in so far as they relate to the discharge of the Charging Order, have no reasonable prospect of success. I need not deal with the other factors such as the length of delay or the reasons therefor.
E. JURISDICTION
57. In the DNOA, Law takes another point not raised before me, namely that I, sitting in the Court of First Instance, have no jurisdiction to deal with the appeal from the Master. The Decision is therefore null and void. There is no elaboration in the DNOA on this point, but in his speaking notes Mr Ching says that, “inspired” by the case of Rainbow v Moorgate Properties Ltd [18], there “may be” an argument that the appeal should have been heard by the Court of Appeal under Order 58, rule 2, instead of the Court of First Instance.
58. Order 58, rule 2, set out six matters in which appeals from a master are to be heard by the Court of Appeal, constituting exceptions to the general rule under Order 58, rule 1, that appeals from a master are to be heard by a judge in chambers.[19] Mr Ching does not suggest that any of the six matters applies here.
59. As Mr Ching correctly accepts, the wording of the relevant rule considered in Rainbow is different from that of the Hong Kong Order 58, rule 2. In that case, under the then English Order 58, rule 2, an appeal lie to the Court of Appeal:
“from any judgment, order or decision of a master of the Queen’s Bench Division (other than an interlocutory judgment, order or decision given or made)”,
which applied to the making of a charging order the subject of appeal there. The Hong Kong Order 58, rule 2, simply has no equivalent.
60. The jurisdiction point is thoroughly bad.
F. VARIATION OF THE COSTS ORDER NISI
61. At [62] and [63] of the Decision, I ordered that Tsui and Law be jointly and severally liable for the costs of the appeal of ES before me, and of the Amended Summons before the Master, and I directed summary assessment by me.
62. By summons dated 13 January 2020, Law applies, out of time, for a variation to the extent that there should be taxation of the costs.
63. In his speaking notes, however, Mr Ching asks additionally that the costs order be varied because: (i) the joinder application was found by me to be unnecessary and time and costs were spent on that before the Master and me; (ii) I did not take on board much of the evidence in Mr Siu’s affirmation, and the submissions of ES in relation to MND had been shifting.
64. Apart from the fact that these points are not raised in the summons (when, ironically, this is a point made on behalf of Law against ES elsewhere), they do not, in my judgment, justify a variation to any extent.
65. For the joinder application, the reason why I found that to be unnecessary is because I found that ES does have locus to apply to discharge the Charging Orders as a person interested in Law’s share of the Property, a point which was contested vigorously but unsuccessfully by Law. This point, and the joinder application, both go to one matter, ES’s locus to make this application. I do not find the making of the joinder application to be improper and overall ES succeeded on the question of locus. I do not see any basis to vary the costs payable by Tsui and Law on the basis that I made no order on the joinder application because it was unnecessary.
66. For the second ground, the affirmations of Mr Siu set out the necessary facts in support of ES’s application and in proper reply to the affirmations of Tsui and Mr Ching. I do not find them to be prepared other than in proper support of ES’s application.
67. As for the submissions on behalf of ES concerning MND, I have set out above how ES’s case thereon was made out, which I do not find to be improper or “shifting”.
68. Regarding summary assessment or taxation, whether in the summons or the speaking notes, Mr Ching has not explained why the former is not appropriate. He also says that, alternatively, I should “provide the paying parties with the safeguard as provided under Order 62, rule 9A(1)(c)”. However, that rule merely provides that in an interlocutory matter the Court may order taxation in accordance with Order 62 (instead of summary assessment as provided for in rule 9A(1)(a) and (b)). This is simply another way to say that taxation ought to be ordered without explaining why, or what safeguards are being referred to.
69. Mr Ko has very fairly referred me to Order 62, rule 9C(1)(b), which may well be what Mr Ching had in mind when he referred (probably mistakenly) to Order 62, rule 9A(1)(c), and which provides:
“No direction or order may be made under rule 9(4)(b) or 9A(1)(a) or (b) for the payment of a sum of money if … the receiving party is an aided person, and the legal representative acting for the receiving party has not waived the right to any further sum of money in respect of the costs of the interlocutory application.”
70. Mr Ko has confirmed in his skeleton that the waiver referred to has been given. This rule is therefore inapplicable.
71. The application to vary the costs order nisi, whether as stated in the summons dated 13 January 2020 or as argued in the speaking notes, is groundless and I refuse to grant an extension of time for it to be made (and I would for the same reasons have dismissed the application to vary in any event).
G. DISPOSITION
72. All of the Summonses are dismissed.
73. Save as provided for in [19] above, Law is to pay the costs of ES of the summonses referred to in [1(1)], [1(2)] and [1(4)] above, and Tsui is to pay the costs of ES of the summons referred to in [1(3)] above. Such costs are to be summarily assessed by me and payable forthwith by Tsui and Law. In so far as any items of costs of ES are incurred for all of the Summonses, I direct that they be apportioned as to 30% to be paid by Tsui, and 70% to be paid by Law. For the avoidance of doubt, I give certificate for counsel to ES.
74. The orders at [73] above are on a nisi basis and if Tsui and/or Law want to apply to vary the same they are to do so by summons to be issued within 14 days of the date of this decision.
75. If no application to vary the orders at [73] above is made, I make the following directions.
76. Regarding Tsui, those acting for ES are to file and serve a skeleton bill of costs payable by him under [19] and [73] above, such service to be effected by the sending thereof, within 7 days of the date of this decision, by ordinary post to the Property to Tsui. Those acting for ES are to mark clearly on the envelope the date on which the same is posted, and Tsui has the liberty to object to or comment on any items therein. Such objections or comments are to be served on solicitors acting for ES and filed with the Court within 10 days of the date so marked. Those acting for ES should also prepare and file an affirmation of service.
77. As for Law, the skeleton bill of costs against her is to be served on Ching & Co within 7 days of the date of this decision, unless in the meantime (i) a Notice to Act in Person has been filed by Law or (ii) an order for Ching & Co to cease to act is granted. In the former case the skeleton bill is to be served on Law by ordinary post at the address provided in the said Notice and all the directions regarding Tsui above as to filing and service shall apply to Law as well. In the latter case I direct that Ching & Co do provide BCC and my clerk with Law’s last known address forthwith and service of the skeleton bill on Law is to be effected by ordinary post at the address provided by Ching & Co and all the directions regarding Tsui above as to filing and service shall apply to Law as well. In any of the above scenarios, Law has liberty to object to or comment on the skeleton bill, such objections or comments to be served on those acting for ES and filed with the Court within 10 days of service of the same on Ching & Co or of the date marked on the envelope sent to her, as the case may be.
78. As for the costs I ordered at [62] of the Decision, before the summons referred to at [1(2)] above was issued, those acting for ES had provided her skeleton bill, to which those acting for Law had responded while Tsui had not. Taking into account the items claimed and the response from those acting for Law, I summarily assess the costs at HK$220,000, for which Tsui and Law are jointly and severally liable, and payable forthwith.
79. ES’s own costs are to be taxed in accordance with the Legal Aid Regulations.
| | (Stewart Wong SC) |
| | Recorder of the High Court |
The plaintiff appeared in person
Mr Ching Ming Yu, of Ching & Co, for the defendant
Mr Tony Ko, instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, for the intended intervener
[1] [2019] HKCFI 2955. The expressions and abbreviations therein are adopted herein.
[2] [2020] HKCFI 3038.
[3] See [10] of the Further Decision for the reasons for delay.
[4] Cap 4A.
[5] When Mr Siu talks about ES and Law, I take it that he includes those acting for them respectively.
[6] Thereby showing that he was aware that a time limit had been set by my order which had already expired by 12 May 2021.
[7] See Hong Kong Civil Procedure 2022 at[59/2A/4]; SMSE v KL[2009] 4 HKLRD 125 at [17] per Le Pichon JA (with whom Poon J (as he then was) agreed).
[8] I note that in Law Wan Tung v The Director of Legal Aid HCAL 180/2021; [2021] HKCFI 2238, which was a judgment on Law’s application for leave to apply for judicial review of a Master’s decision dismissing Law’s appeal against the decision of the Director of Legal Aid to refuse to grant her legal aid in relation to the intended appeal against the Decision, Chow JA, at [30], was of the view that Law could not appeal my decision on the joinder application, namely that I made no order thereon, as she could not just appeal from my reasons when the actual decision itself was not something which she wanted to or proposed to disturb. The DNOA puts the matter as an appeal from my ruling that ES had the locus under section 20B(4) of the High Court Ordinance and Order 50, rule 7(1), to apply to discharge the Charging Order. The problem recognised by Chow JA may or may not be applicable to the manner the matter is put, but since this point is not argued before me I prefer not to rule on the question of leave to appeal on this issue by reason thereof.
[9] [2000] 1 BCLC 576.
[10] [2010] Ch 318.
[11] Cap 4.
[12] With whom Mustill LJ (as he then was) agreed.
[13] [1986] Fam 81.
[14] With whom Maurice Kay and Lloyd LJJ agreed.
[15] Cap 6.
[16] CAMP 61/2020; [2021] HKCA 604, at [6], giving the judgment of the Court of Appeal comprising also of Yuen JA.
[17] See [19] of the HC Judgment.
[18] [1975] 1 WLR 788.
[19] There are two other exceptions mentioned in rule 1, namely those provided for under Order 5, rule 6, and Order 12, rule 1, neither of which is applicable here.