WONG HING v. NG LEUNG FA

DCMP 165/2018

[2022] HKDC 636

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 165 OF 2018

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BETWEEN

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DECISION

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INTRODUCTION

1.  This is the defendant’s appeal against the order of Master Jacqueline Lee dated 4 February 2021 and for leave to appeal out of time.

Background

2.  The following factual background is relevant.

3.  Under HCA 13651/1999, the plaintiff obtained a judgment against the defendant on 24 September 1999 for the sum of $275,500 together with interest and fixed costs.

4.  Based on the said judgment, a charging order absolute dated 29 October 2004 was granted imposing a charge on the property known as Flat 8, 14/F, Block C, Siu Shan Court, Nos 2/26 Wu Shan Road, Tuen Mun, New Territories, Hong Kong (“the property”).

5.  The plaintiff instituted the present proceedings in January 2018 for the purpose of enforcing the said charging order absolute for an order for sale of the property.

6.  Master Jacqueline Lee made an order on 4 February 2021, which is the subject of this appeal.

Legal principles on appeal against Master’s decision and appeal out of time

7.  An appeal from the master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time: 58/1/2 Hong Kong Civil Procedure 2022 Vol 1

8.  In considering whether to extend time to appeal, the court has to consider all relevant factors, particularly, (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the proposed appeal; and (4) the degree of prejudice to the other party: see 58/1/9 Hong Kong Civil Procedure 2022 Vol 1

The Defendant’s reasons for the delay

9.  The defendant said that she moved to the USA in July 2004 and did not return until 2014. Between 2014 and 2019, she visited Hong Kong once a year and stopped doing so since 2019 due to the pandemic. On 21 December 2021, she was told by her cousin’s relative that a notice to quit was posted on the property. She immediately instructed a law firm to act for her in the matter.

10.  The charging order absolute was made on 29 October 2004 when the defendant had already moved to the USA. When these proceedings were taken out in 2018, the defendant only visited Hong Kong once a year, which she stopped doing so from 2019 onwards.

11.  I see no reason to doubt the defendant’s version that she only came to notice of these proceedings in December 2021.

12.  Having said that, however, I need to consider the merits of the defendant’s appeal.

The defendant’s argument

13.  The thrust of the defendant’s argument is not on the validity of the charging order absolute, but on the amount the plaintiff is entitled to recover due to the long lapse of time between date of the charging order absolute and the enforcement thereof in 2018.

14.  Mr Gavin Wan, counsel for the defendant, placed reliance on Chevalier Property Management Ltd v Yu Chau Yeung [2007] HKCLRT 667. Mr Wan submitted that the Court of Appeal held that s 19(1) of the Limitation Ordinance applied to the plaintiff’s claim for management fees, collection charges and other expenses and the time was to run from the moment when the charge was created, ie 30 days after the date on which the defendant is required to make payment. Applying the principle in Yu Chau Yeung to the present case, Mr Wan submitted, that any action to recover the principal sum secured by the charging order absolute, ie $275,500, is subject to the limitation of time under s 19(1) of the Limitation Ordinance. The time limit of 12 years should begin to run from the date of the charge created, ie 29 October 2004. Therefore, the plaintiff’s claim of the principal sum is time-barred by 29 October 2016.

15.  Mr Wan drew a distinction between the decision in England in Yorkshire Bank Finance v Mulhall [2009] 1 P & C R 16 on the application of s 20(1) and s 20(5) of the Limitation Act 1980 (which is comparable to a 19(1) and s 19(5) of the Limitation Ordinance) and Yu Chau Yeung (supra) to a charging order absolute. Mr Wan submitted that although Mulhall (supra) was decided after Yu Chau Yeung, it is persuasive authority only. Yu Chau Yeung is not overturned by other Hong Kong authorities and Mulhall was not applied by any Hong Kong authorities in relation to s 19(1) and s 19(5) of the Limitation Ordinance in terms of an equitable charge. Therefore, Mr Wan submitted, Yu Chau Yeung should be the binding authority.

16.  Mr Wan submitted that the plaintiff’s originating summons herein was an action to enforce the charging order absolute dated 29 October 2004. Any action to recover the principal sum secured by the charging order absolute is subject to the limitation of time under s 19(1) of the Limitation Ordinance. The time limit of 12 years should run from the date of the charge order absolute. Therefore, the plaintiff is barred from claiming the principal sum of $275,500 by 29 October 2016.

17.  In respect of interest, Mr Wan submitted that the plaintiff was not seeking to recover interest on the basis of the security, but from the judgment in HCA 13651/1999 dated 24 September 1999. Section 19(5) of the Limitation Ordinance is applicable. Therefore, the time limit for the plaintiff to recover interest start from the date of the charging order absolute, ie 29 October 2004. The plaintiff is only entitled to recover interest on the principal sum within 6 years before the date of the originating summons (ie 18 January 2012). As the plaintiff is time-barred from claiming repayment of the principal sum from 29 October 2016, no interest should be payable from that day. According to Mr Wan’s calculation, therefore, the plaintiff is only entitled to interest at 8% per annum for the following periods:-

Period	Amount (HK$)
18/1/2012 - 31/12/2012	21,073.86
1/1/2013 - 31/12/2013	22,040.00
1/1/2014 - 31/12/2014	22,040.00
1/1/2015 - 31/12/2015	22,040.00
1/1/2016 - 28/10/2016	18,235.84
Total:	105,429.70

The plaintiff’s argument

18.  On the other hand, Mr Danny Lee, counsel for the plaintiff, submitted that this court is not bound by Yu Chau Yeung.

19.  Mr Lee pointed out that Yu Chau Yeung concerned a charge created by the provisions of a Deed of Mutual Covenant whereas a charging order is under consideration in the present case, albeit both of them are equitable charges in nature.

20.  Mr Lee submitted that the English authorities of Ezekiel v Orakpo [1997] WLR 340 and Mulhall dealt with the issues as in the present case and therefore should be applied. In short, that there is no provision in the Limitation Ordinance that governs the enforcement of a charging order so that it remains enforceable despite the lapse of time.

Discussion

21.  In my view, there is no inconsistency between Yu Chau Yeung and the English authorities of Ezekiel (supra) which was followed by Mulhall. Yu Chau Yeung was decided in the context of a charge created pursuant to the terms of a Deed of Mutual Covenant. In fact, the principle in Ezekiel was applied (at para 24) that the plaintiff is not only a “judgment creditor” but also a “secured creditor”.

22.  Cheung JA took the view (also at para 24) that when the plaintiff applied to court for an order for vacant possession and sale of the charged property, it is not a civil action to recover the arrears because he is recovering the arrears on the basis of the security (ie the charge). This was the view of Millett LJ in his speech in Ezekiel at 350F-G.

23.  Mulhall is a case precisely on the issue in dispute in the present case. There, the English Court of Appeal considered the effect of s20(1) of the Limitation Act 1980 (the Hong Kong equivalent of s19(1) of the Limitation Ordinance) on a charging order. Lloyd LJ (at para 31), applying the principle in Ezekiel, held that despite the lapse of time since the making of the charging order, s 20(1) does not apply to the enforcement of the charging order.

24.  In Ezekiel, the English Court of Appeal in allowing the plaintiff’s appeal, considered the effect of s20(5) of the Limitation Act 1980 (the Hong Kong equivalent of s 19(5) of the Limitation Ordinance) and held that the plaintiff’s application to enforce the charging order was not an action on the judgment debt or enforcement of execution of that judgment, but action to recover what was due to him as a secured creditor, that there was nothing in the Limitation Act 1980 restricting a secured creditor from recovering more than six years’ interest out of the proceeds of enforcing his security. Therefore, the plaintiff was able to rely on his security to recover all the money due to him irrespective of the running of any limitation period.

25.  In view of the above, it seems clear that there is no divergence of jurisprudence between Hong Kong and English courts on the effect of the limitation provisions on charging order.

26.  Accordingly, despite the industrious submission of Mr Wan, the argument of the defendant must be rejected.

27.  I would hold that s 19(1) and (5) of the Limitation Ordinance are not applicable and the plaintiff is entitled to recover the principal sum of $275,500 and interest as stated in the charging order absolute dated 29 October 2004.

Appeal against costs order

28.  The defendant also sought to appeal against the basis of taxation, ie to vary from an indemnity basis to a party and party basis.

29.  Mr Wan submitted that the defendant had never acted unreasonably or caused any undue delay. The long delay of enforcing the charge order was not caused by the defendant because she was unaware of the matter.

30.  The judgment was entered in September 1999 when the defendant was residing in Hong Kong. She only moved to the United States some 5 years later. She alleged that she was not aware of the High Court proceedings and had never received any court documents thereof.

31.  The plaintiff is required to serve the writ of summons on the defendant. The High Court must be satisfied that the writ of summons had been effectively served on the defendant before a judgment was allowed to be entered.

32.  Common sense dictates that the plaintiff would use his best endeavour to make known to the defendant that a judgment was entered against her in his favour and to demand payment from her. To enforce the judgment by applying to court for a charging order would necessitate extra costs on the part of the plaintiff.

33.  I do not accept that the defendant had never received any court documents of the High Court action. Rather, she was adopting a “let the sleeping dog lie” attitude when faced with the High Court action and the judgment that was subsequently entered.

34.  Accordingly, the submission of Mr Wan is rejected.

35.  Regarding the costs orders dated 3 April 2018, 5 June 2018 and 27 May 2020, they were all reserved costs orders made prior the Order of Master Jacqueline Lee dated 4 February 2021. Mr Wan submitted that they were unnecessarily incurred and no order as to costs should be ordered.

36.  By the order dated 3 April 2018, the plaintiff was ordered to file supplemental affirmation to clarify the interest charged and the valuation report should be updated with the endorsement of a declaration of truth and re-service of the originating summons and all supporting affirmations was required.

37.  By the order dated 5 June 2018, the hearing was adjourned and the plaintiff was required to re-serve the originating summons and all supporting affirmations on the defendant.

38.  By the order dated 27 May 2020, the hearing was adjourned and the plaintiff was required to file and serve a supplemental affirmation.

39.  They were procedural steps to be taken by the plaintiff before an order was granted by the court. They must be regarded as part and parcel of the proceedings. I do not see why the plaintiff should be deprived of the costs thereof.

Conclusion and order

40.  By reasons of the aforesaid, I find that the defendant’s appeal is unmeritorious. Her application for leave to appeal out of time is dismissed.

41.  I also lift the stay of execution ordered by Master June Cheung on 14 April 2022.

Costs

42.  Costs to follow the event. I order that the defendant doth pay the plaintiff the costs of this appeal with certificate for counsel, to be taxed if not agreed.

43.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Danny Lee of Kwok, Ng & Chan, assigned by the Director of Legal Aid, for the plaintiff

Mr Gavin Wan, instructed by Chan Ching Man & Co, for the defendant

DCMP 165/2018

[2022] HKDC 270

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.165 OF 2018

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DECISION

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1.  The defendant applied by summons filed on 28 February 2022 (the Summons) for leave to file her draft 3^rd affirmation attached thereto (theDraft 3^rd Affirmation) as “supporting affirmation in relation to her appeal” against the order of a master by way of Notice of Appeal filed on 31 January 2022 (the Notice of Appeal).

2.  O.58 r.1(4) (the said Rule) of the Rules of District Court (RDC)[1] was put down in the marginal note of the Summons.

3.  In view of general adjournment of proceedings announced by the Judiciary, directions were given for lodging of written submissions for the Summons to be disposed on paper.

Background

4.  The plaintiff took out these proceedings in January 2018 by way of originating summons to enforce by way of order for sale a charging order absolute (the COA) he obtained against a landed property in defendant’s name (the Property) almost 14 years ago in October 2004 for judgment sum & interest due from the defendant to him in a High Court action issued in 1999 (the 1999 Action).

5.  On 4 February 2021, a master granted the subject order under appeal i.e. an order of sale of the Property with consequential directions (the Order) at a hearing when the defendant was absent. In fact, the defendant had never entered any appearance in person or through lawyer, filed any affidavit nor attended any hearing in these proceedings before the Order was made.

6.  The plaintiff thereafter obtained on 1 December 2021 writ of possession to carry the Order into effect.

7.  When the plaintiff was about to obtain possession of the Property about a year after the Order was made, the defendant instructed solicitors to file a Notice to Act in these proceedings on 30 December 2021 and subsequently obtained on 27 January 2022 interim execution of the writ of possession pending hearing of defendant’s another summons for stay of execution.

8.  On 31 January 2022 i.e. almost a year after the Order was made, the defendant filed the Notice of Appeal to appeal against the Order and served it on the plaintiff (the Appeal).

9.  The Appeal is now scheduled to be heard before a judge in chambers on 18 May 2022.

The Notice of Appeal

10.  The defendant sought at paragraphs 3 to 5 at pages 5 & 6 of the Notice of Appeal that the Order be varied in 3 ways: (1) certain amounts of principal and interest be not recoverable from sale proceeds of the Property on the ground that “the Plaintiff is time-barred to claim from the Defendant (italics added)”; (2) costs of these proceedings be taxed on “party-to-party basis” and not on indemnity basis as granted; and (3) there be “no order as to costs” for 3 previous hearings in the years 2018 and 2020.

11.  In other words, the defendant did not appeal to set aside the Order.It was put down at paragraph 6 of the Notice of Appeal that “the Order do stand except as varied above (italics added)”.

12.  Hence, although the Appeal operates as an actual rehearing of the application leading to the Order with the decision of the master not binding on the judge, see paragraph 58/1/2 of volume 1 of Hong Kong Civil Procedure 2022 (HKCP), the rival contentions to be advanced at the hearing of the Appeal is whether the Order ought to stand as the plaintiff obtained below or ought to be varied as contended by the defendant (the Substantive Appeal).

13.  In addition to the Substantive Appeal, the defendant made another application at paragraph 1 at page 5 of the Notice of Appeal that that time be extended for the defendant to appeal against the Order (the Time Extension Application).

14.  The Time Extension Application was required because the Appeal was out of time. Under O.58 r.1(3), RDC, “unless the Court otherwise orders, the notice [of appeal] must be issued within 14 days after the … order appealed against was … made and must be served within 5 days after issue… (italics supplied)”.

15.  The Time Extension Application was made in the Notice of Appeal in line with case law referred below and not separately by way of inter parte summons.

16.  An application for extension of time for appealing to a judge in chambers should be made at the same time as the appeal, and the extension asked for in the notice of appeal: see paragraph 58/1/9 of HKCP, citing Chiu Sin-chung v Yu Yan-yan & Another [1993] 1 HKLR 225 at [229].

17.  Hence, at the hearing of the Appeal on 18 May 2022, the Time Extension Application and the Substantive Appeal are, in principle, both required to be argued and disposed of, unless disposal of one is conclusive of the other.

The Draft 3^rd Affirmation

18.  The defendant put down at paragraph 1 thereof: “By this affirmation, I intend to explain the reasons for asking for time be extended for my appeal”.

19.  The defendant claimed at paragraph 4 thereof of having moved to the USA in around 2004 and thereafter allowed relatives and friends to stay at the Property until around 27 December 2021.

20.  The defendant claimed at paragraph 5 thereof being told by the last occupant of the Property on 21 December 2021 that a Notice to Quit was posted on the Property. She also claimed at paragraph 6 thereof being informed that a second Notice to Quit was posted on the Property warning that it would be broken open on 25 January 2022.

21.  At paragraphs 7 & 8 thereof, the defendant claimed thereafter to have instructed solicitors to attend to the matter soon as she “was unaware of the proceedings before”.

22.  Regarding the judgment in the 1999 Action, the defendant claimed at paragraphs 9 to 11 thereof not being “aware of the proceedings in 1999” until “around 2017” and never having “received any Court documents”. By way of consequence, the defendant, it was claimed, never filed any notice of intention to defend nor attended any hearing of the 1999 Action.

23.  Regarding the COA proceedings, the defendant claimed at paragraph 12 thereof never being informed or aware of the same, and thus never attended any hearing thereof.

24.  At paragraph 13 thereof, the defendant asked that time be extended for the Appeal for reasons given by her.

Parties’ Submissions

25.  Both parties referred to, and relied on, the said Rule, which reads: “No further evidence (other than evidence as to matters which have occurred after the date on which the … order … was … made) may be received on the hearing of an appeal under this rule except on special grounds (italics supplied)”.

26.  The plaintiff submitted that the defendant was adducing fresh evidence for the purpose of the Appeal. The Draft 3^rd Affirmation, it was stressed, was “supporting affirmation” for the Appeal on the face of the Summons.

27.  It was instead submitted on behalf of the defendant that the defendant intended to adduce the Draft 3^rd Affirmation “to depose the reasons for her delay in the Appeal and not otherwise (italics supplied)”[2]. In any event, it was argued on defendant’s behalf that she was not adducing a further round of evidence on appeal as no evidence was adduced by her below at all.

28.  The said Rule, the defendant submitted, allowed for fresh evidence to be adduced if it relates to matters that occurred after the order appealed against. The Draft 3^rd Affirmation, it is submitted, relates to matters which occurred after the Order and thus it is, and should be, permitted under the said Rule.

29.  The plaintiff, however, disagreed with defendant’s submissions above and pointed out that the Draft 3^rd Affirmation also contains matters which occurred before the Order and thus it goes beyond the scope of the said Rule.

30.  The defendant, nonetheless, submitted that such pre-Order matters are required to be put into the Draft 3^rd Affirmation as they are required to explain why the defendant was, as she claimed, not aware of the Order beforehand. It was argued that it should not be viewed as adducing evidence before the date of the Order.

31.  For the reasons advanced above, the defendant submitted that the 3 conditions laid down in Ladd v Marshall are not applicable to this case. But the plaintiff argued otherwise.

32.  “Special grounds” stated in the said Rule, the plaintiff emphasized, require the 3 conditions laid down in Ladd v Marshall to be satisfied in order for fresh evidence to be adduced. As the Appeal is solely on legal ground of limitation, the contents of the Draft 3^rd Affirmation, whether they are accepted or not, the plaintiff submitted, could have no bearing on the result of the Appeal and thus the 2^nd condition of Ladd v Marshall has not been satisfied in this case.

33.  The defendant agreed that the Appeal is on law exceptfor extension of time. She referred to paragraph 58/1/9 of HKCP, which reads: “In considering whether to extend time to appeal, the Court has to consider all relevant factors, particularly: - … 2. the reasons for the delay…”. The Defendant was, it was argued, only giving reasons for the delay of the Appeal in the Draft 3^rd Affirmation and, in view of such commentary of HKCP, such explanation must have a bearing on the result of the Appeal.

34.  While agreeing that the court has a discretion to grant extension of time for an appeal having regard to, among others, reasons for the delay, the plaintiff further argued that the Summons should be adjourned to be heard on the date of the hearing of the Appeal so that the Draft 3^rd Affirmation could be heard or decided de bene esse together with the Substantive Appeal[3].

35.  In reply, the defendant submitted that this Court can, and should, admit the Draft 3^rd Affirmation now, leaving the weight, if any, attached to its contents (or the acceptability of the purported explanation offered for the delay) to be argued and decided at the hearing of the Appeal. The plaintiff, it was stressed, suffers no prejudice if the Draft 3^rd Affirmation is admitted now.

Discussions

36.  Contrary to parties’ common submissions, I do not find the said Rule applicable to the Summons. The said Rule, in my view, sets out to prohibit fresh or further round of evidence adduced for the purpose of the Substantive Appeal save with 2 exceptions i.e. (1) matters which occurs after the order appealed against; and (2) evidence that has special grounds for its admission.

37.  The Time Extension Application (and the Summons, if required to be taken out at all) should be based, I think, on O.3 r.5, RDC[4], which rule was also cited at paragraph 58/1/9 of HKCP.

38.  In Chiu Sin-chung, supra, at [227] & [228], it was said that “the court’s discretion to extend the time for appealing an order of a master to a judge in chambers under O.3 r.5(1) is unfettered”. But certain principles can be extracted from the case law, including “(i) there must be some material upon which the court can exercise its discretion”, “(ii) the prerequisite of an application to extend time is a clear statement as to the reasons for the time limits not having been observed and for any delay in then applying for an extension”, and “(iv) the factors which are normally to be taken into account in that balancing exercises are (a)…, (b) the reasons for the delay, (c)…, and (d)… (italics supplied)”.

39.  Notwithstanding the wordings of the Summons, considering the contents of the Draft 3^rd Affirmation, the varied order sought in the Notice of Appeal by the defendant, the legal ground of limitation put down therein, and confirmation given in defendant’s written submissions, the Draft 3^rd Affirmation is, I think, plainly and solely prepared for the purpose of the Time Extension Application to be heard on the hearing of the Appeal. It is, I believe, to provide the materials, and the reasons for the delay, for the court to exercise its discretion to extend time for appealing or not.

40.  In other words, the Draft 3^rd Affirmation is, I agree, not to be adduced as evidence for the Substantive Appeal and the said Rule has therefore, I think, nothing to do with it. As such, it does not matter that the Draft 3^rd Affirmation contains matters which occurred before the Order was made or that the 3 conditions of Ladd v Marshall are not satisfied in this case.

41.  There is, I believe, no prohibition in RDC (or no requirement for leave in RDC) for the defendant to file or adduce the Draft 3^rd Affirmation as supporting affirmation for the Time Extension Application made under O.3 r.5, RDC. And no court direction has, I note, been given so far to regulate the same.

42.  In the experience of this Court, though it is not frequently done, affirmations are from time to time filed and served without leave of court in support of time summonses taken out pursuant to O.3 r.5, RDC, in order to adduce evidence to persuade the court to exercise its discretion under the said rule.

43.  In fact, in Chiu Sin-chung, supra, at [226], the 1^st defendant therein also made an affirmation on 18 September to set out the reasons for failure to file the notice of appeal against the order of a master in time before summons was issued on the 19 September for leave to file out of time a notice of appeal from a master’s order. Nothing about leave to admit such affirmation to give reasons for the said failure was mentioned in the report.

44.  For the above reasons, the Summons need not, I think, be taken out at all. The defendant requires, in my view, no leave from this court to file and serve the Draft 3^rd Affirmation in support of the Time Extension Application.

45.  If, contrary to my conclusion above, the defendant requires leave of this Court to file and serve the Draft 3^rd Affirmation in support of the Time Extension Application, I grant the same now in light of, among others, the factors to be considered in the Time Extension Application, the contents of the Draft 3^rd Affirmation and, as I explain below, absence of prejudice to the Plaintiff.

46.  Let me make it clear that I express no views on the contents of the Draft 3^rd Affirmation in giving my leave for its admission now. I do not for one moment decide whether they are credible or not. Neither do I decide whether the purported explanation given for the delay concerned is excusable or not. The weight, if any, to be attached to the contents of the Draft 3^rd Affirmation lies, I must stress, entirely with the judge dealing with the Time Extension Application after considering other evidence, if any, and parties’ submissions. And the said judge will decide for himself/herself how (e.g. the sequence) the Time Extension Application and the Substantive Appeal are to be argued and disposed of at the forthcoming hearing of the Appeal.

47.  The admission of the Draft 3^rd Affirmation into evidence now causes, I believe, no prejudice to the plaintiff as the plaintiff is free to file and serve affirmation(s) (if so advised) to respond to the same and even to argue against it at the forthcoming hearing of the Time Extension Application.

48.  And I think it serves both parties well for the Draft 3^rd Affirmation to be admitted now than later as there is still sufficient time for the parties to prepare consequential affirmation(s), if any, prior to the hearing of the Appeal on 18 May 2022.

49.  By way of case management, I will further give directions below specifying clearly the application the Draft 3^rd Affirmation is to be adduced for and giving a timetable for parties’ filing and service of consequential affirmation(s), if any, on the said application.

Disposition

50.  I dispose of the Summons by ordering as follows:

(1)  Leave be given to the defendant to file and serve within 7 days her 3^rd affirmation in identical contents with those of draft 3^rd affirmation of her attached to the Summons in support of her time extension application to file Notice of Appeal out of time on 31 January 2022 to appeal against the Order of Master Jacqueline Lee dated 4 February 2021;

(2)  Leave be given to the plaintiff (if so advised) to file and serve within 14 days thereafter affirmation(s) in response to said 3^rd Affirmation of the defendant;

(3)  Leave be given the defendant to file and serve within 7 days thereafter affirmation(s), if any, in reply to plaintiff’s affirmation(s) in response;

(4)  No further affirmation to be filed or served on defendant’s time extension application except with leave of the court; and

(5)  In the event the time for the parties to file affirmation(s) as stipulated above falls on a date on which the Registry of the District Court is still closed due to general adjournment of proceedings, the deadline for the filing of the same shall be extended to within 14 days after the reopening of the Registry.

Costs

51.  I have allowed the Summons as amended but not entirely for the submissions advanced by the defendant. And I have rejected opposition submissions advanced by the plaintiff.

52.  But neither party in their written submissions seeks costs against the opposite party. The defendant merely asked for an order in terms of the Summons, with costs be in the cause of the Appeal[5]. The plaintiff seeks only that his own costs be taxed in accordance with the Legal Aid Regulations[6].

53.  Having considered, among others, O.62, r.3(2A), RDC, and all the matters I have highlighted above, I order as follows:

(1)  the costs of the Summons be in the cause of defendant’s time extension application to file the Notice of Appeal out of time on 31 January 2022 to appeal against the Order of Master Jacqueline Lee dated 4 February 2021; and

(2)  plaintiff’s own costs of the Summons be taxed in accordance with Legal Aid Regulations.