DMITRY YANISHEVSKIY v. MAXIM MOSKALEV

HCA 1840/2019

[2026] HKCFI 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1840 OF 2019

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REASONS FOR DECISION

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The Application

1.  This is the application made by the Plaintiff, by summons issued on 6 August 2025 (“Summons”), for leave to provide, and to compel the Defendant to provide, further signature samples to the parties’ handwriting authentication experts (“Experts”).

2.  By way of background, the Plaintiff instituted these proceedings on 3 March 2022, claiming the sum of US$4,592,215.76 against the Defendant under a promissory note dated 16 February 2018 (“Promissory Note”). At the core of the dispute is whether or not the Defendant’s signature on the Promissory Note is forged. The Plaintiff claims that the signature belongs to the Defendant; the Defendant claims that it is forged.

3.  On 28 February 2024, this Court issued directions and granted leave to the parties to adduce handwriting authentication expert evidence to address the question of whether the signature on the Promissory Note is that of the Defendant.

4.  Under the direction, the Experts were to hold a 1^st without prejudice meeting (“1^st WP Meeting”) for the purpose of endeavouring to agree on the methodologies, analyses and tests to be used, and in particular the number of and requirements for sample signatures to be provided by the Defendant to the Experts.

5.  The 1^st WP Meeting took place on 9 January 2025. It was attended by the Plaintiff’s expert (“Mr Liang”), the Defendant’s expert (“Mr Leung”), the Plaintiff’s solicitors, and the Defendant’s solicitor (“Mr Wai”).

6.  On 28 April 2025, the Defendant provided around 400 signatures contained in 24 documents (“Provided Samples”).

7.  By this Summons, the Plaintiff applies for:

(1)  leave to be granted to the Plaintiff to provide the Experts with 8 additional samples of the Defendant’s signatures on documents which are already in the Plaintiff’s possession (the “8 Additional Samples”);

(2)  an order to compel the Defendant to provide clear copies of his identity documents showing his signature (the “ID Documents”); and

(3)  an order to compel the Defendant to provide 20 further additional original documents containing his signature made within 5 years prior to the date of the Promissory Note (the “20 Additional Samples”).

8.  The Defendant has agreed to part of the Summons, and indicated that:

(1)  He does not oppose to Items 1 to 3 of the 8 Additional Samples being considered by the Experts; and

(2)  He would provide the ID Documents, which he did so on 15 September 2025.

9.  The Defendant however remains opposed to the rest of the Summons.

(1)  He objects to the provision of Items 4 to 8 of the 8 Additional Samples, on the basis that he has no clear recollection of signing those documents on which the signatures appear.

(2)  He also objects to the provision of the 20 Additional Samples on the basis that he has already used his best efforts but has not been able to locate any further sample signatures executed within 1 year of the Promissory Note.

10.  Therefore, the sample signatures presently available for the Experts to examine are:

(1)  3 signatures from Items 1 to 3 of the 8 Additional Samples;

(2)  7 signatures from the Defendant’s ID Documents; and

(3)  Around 400 signatures from the Provided Samples.

11.  On 19 November 2025, the Defendant applied by summons to file and serve the 10th Affirmation of Mr Wai, to exhibit the correspondence exchanged between the parties’ solicitors concerning the provision of sample signatures to the Experts.

12.  Having considered the parties’ submissions, the pleadings and the affirmations, I was only prepared to make an order for the Plaintiff to provide Items 4 to 8 of the 8 Additional Samples to the Experts, and made an order to such effect, together with an order that the Defendant do provide the originals of all his ID documents. These are the reasons for my decision.

The task of the expert

13.  Counsel for the Plaintiff highlighted the relevant considerations for expert determination of handwriting, referring to the judgment in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, at paras 24 to 25. In that case, Ribeiro PJ observed that the wider the sample of known signatures there is, the more reference points the expert will have against which to consider the genuineness or falsity of the questioned signatures, and the more secure his opinion will be. In the context of proving a will, the Court observed in the case that 18 samples of signatures were “limited” and “not sufficient” and that the experts in the case were thereby “hampered to some degree”. It was highlighted that an assumption cannot be made that all of the samples provided to the expert would be helpful. The expert would have to compare (inter alia) the type of pen used to make the signatures, and the type of paper used.

14.  Accordingly, it was pointed out by Counsel for the Plaintiff that it was necessary to provide and have available a reasonable range of samples for the Experts, and to furnish to them as comprehensive information as is reasonably available with regard to the signatures.

The Provided Samples

15.  The Plaintiff has pointed out that the majority of the Provided Samples are unsatisfactory, as they were “mass‑produced” signatures of the Defendant, repeated “artificially” on blank sheets of paper. Moreover, around 120 of these signatures were made in 2021, after the claim of forgery was raised. According to the Plaintiff, because these signatures were made artificially, there may be an element of self-interest or conscious suppression on the part of the Defendant at the time when the signatures were made.

16.  If the mass-produced samples are excluded, this leaves only 18 sample signatures which were “naturally” signed. The Plaintiff says that this is inadequate and the Experts will not be able to give a reliable opinion.

17.  The Plaintiff further submits that it is incredible for the Defendant to claim that he has only been able to produce two original documents for 2018 (the year in which the Promissory Note was signed).

18.  The Plaintiff accordingly contends that further and better samples are required for the Experts, giving rise to the Summons.

19.  The Defendant’s primary objection to the production of Items 4 to 8 and the 20 Additional Samples is that they were made outside the period of one year before and after the date of the Promissory Note, and would not be helpful to the Experts as they were not reasonably contemporaneous to the disputed signature.

20.  The Defendant further contends that it would be disproportionate to authorise production of the documents sought by the Plaintiff, because a “consensus” had been reached between the Experts at the 1^st WP Meeting, that the Defendant need only search for sample signatures primarily within one year before and one year after the date of the Promissory Note, with some limited flexibility for samples outside that period.

21.  It is to support this contention, that the Defendant seeks to file and serve the 10^th Affirmation of Mr Wai, which refers to various correspondences between the Plaintiff’s solicitors and the Defendant’s solicitors. In that correspondence, the Plaintiff’s solicitors complained that the Provided Samples fell outside the 2‑year period before and after the Promissory Note and therefore lacked contemporaneity. Additionally, in letters to the Plaintiff’s solicitors, Mr Liang had requested 20 to 30 signatures executed within 1 year of the Promissory Note. Accordingly, the Defendant submits that even on the view taken by the Plaintiff’s Expert, Items 4 to 8 are of limited value, as they were signed some 4.5 years before the Promissory Note.

22.  The Plaintiff, on the other hand, submits that at the 1^st WP Meeting, the Experts had not stipulated any fixed temporal limit on the samples to be provided. There was much debate on this in Counsel’s skeleton submissions.

23.  I do not find it necessary to refer to the parties’ correspondence which the Defendant seeks to adduce, in order to decipher whether any alleged and fixed “consensus” had been reached by the Experts at the 1^st WP Meeting. Even assuming, for present purposes, that there had been some consensus reached at the 1^st WP Meeting, the Court is entitled to hear the Experts’ current views on the adequacy of the documents so far provided after the 1^st WP Meeting, and to decide whether it is reasonable to revise any temporal scope agreed at the meeting.

24.  As Counsel for the Plaintiff pointed out by reference to 皇河實業有限公司v Wan Chiu Yuen, unreported, DCCJ 4448/2011, 18 January 2013, the Court should not at the interlocutory stage resolve any dispute as to the methodology of the experts, and should facilitate the experts unless the test proposed is exceptional. Counsel also pointed out that under the Order made by the Court on 28 February 2024 at the 2^nd Case Management Conference, it was directed that the Defendant should fully cooperate with both handwriting authentication Experts in supplying their reasonably required sample signatures. I agree that unless it can be seen that the Expert was unreasonable in the request made, or that what the Expert or the parties required is totally unnecessary, there is no good reason at this stage for the Court not to assist the Experts in the production of their reports and to facilitate their execution of the task required of them.

25.  The real test for determination of the present dispute between the parties is whether the documents required by the Plaintiff, and to be put to the Experts, are reasonably necessary, or helpful.

26.  As Counsel for the Plaintiff explained, it is ultimately for the Experts themselves to determine what weight, if any, should be given to the sample signatures provided to them, and whether scrutiny of the samples provided are necessary for the formation of their opinions. It is for the Court to assess, at the end of the day, whether the opinion of each Expert, and the basis of his findings, are valid, convincing and to be preferred.

Items 4 to 8 of the 8 Additional Samples

27.  The Plaintiff’s case is that the 8 Additional Samples were all signed by the Defendant in the course of previous business dealings conducted between the parties before the disputed Promissory Note. They are all dated 3 or 4 October 2013.

28.  The Plaintiff pointed out that the documents containing the signatures as particularised in Items 4 to 8 were signed for transactions made in the course of the Defendant’s attempt to divest control of his companies and to acknowledge the value of the assets that were the subject of the aforesaid transfers. The Plaintiff has the original of the documents. The Plaintiff argued that, if the Defendant is to claim that those documents or his signatures thereon are forged, he must mount a proper challenge of authenticity to the signatures and documents, and none has been made in this case.

29.  The Plaintiff also pointed out that being original documents, Items 4 to 8 are particularly useful because they enable the Experts to compare the type of pen used, the writing speed, and the pressure applied to the paper, all of which are relevant to the assessment of the authenticity of the signature.

30.  The Plaintiff submits that Items 4 to 8 fall within the 5‑year temporal range that the Plaintiff’s Expert indicated could be considered. If, upon examination, the Experts consider the signatures to be of limited or no assistance, they can simply place no weight on them in their analysis.

31.  On the other hand, the Defendant’s case is that he has “no clear recollection” of signing the documents enumerated as Items 4 to 8. Since the authenticity and provenance of the documents are disputed, the Defendant contends that they should not be submitted to the Experts as sample signatures, as otherwise, the Defendant may have to adduce further evidence at trial to challenge their authenticity, and this would be a waste of time and a further distraction from the key issues for determination at trial.

32.  Since the documents described in items (4) to (6) of the 8 Additional Items were created in the course of the parties’ business dealings, which the Defendant does not dispute took place, the fact that he now claims he has no clear recollection of signing the documents is not a convincing reason to reject the signatures. If necessary, it is for the Defendant to convince the Court at trial that those signatures were not his - if he should maintain such stance at trial. That will be part of the overall assessment of the Defendant’s credibility at trial. It is pertinent that, despite their being outside the period of one year before/after the Promissory Note date, these are original documents on which the signatures appear. They are presently available and can be produced by the Plaintiff to the Experts. The Experts can no doubt make useful reference to them, after taking into account the time at which the signatures were made, by reference to the date when the Promissory Notes were signed.

33.  I therefore granted an order for production of Items (4) to (6) of the 8 Additional Samples.

20 Additional Samples

34.  In opposing the production of the 20 Additional Samples, the Defendant claims that he has exhausted his best efforts to locate more sample signatures within 1 year before or after the Promissory Note, but that his efforts have been in vain.

35.  With regard to the mass-produced samples, the Defendant claims that these were made for another unrelated set of Russian proceedings, and that there is no blanket rule for excluding made-to-order signatures. Even excluding the mass-produced signatures, there are a remainder of 28 signatures available, consisting of: (1) 18 “naturally” signed signatures from the Provided Samples; (2) 7 signatures from the ID Documents; and (3) 3 signatures from Items 1 to 3 of the 8 Additional Samples. These, the Defendant submits, are adequate for the purposes of the Experts’ examination.

36.  Finally, the Defendant submits that the 5-year period suggested by the Plaintiff for the 20 Additional Samples is arbitrary. The Defendant emphasised that even the Plaintiff’s own Expert has stated that even a 3-year period is insufficiently contemporaneous.

37.  In my judgment, the Experts may form and express their own opinion as to whether the mass-produced signatures, or the additional samples within any time range, are reliable or helpful samples, and if they are considered unhelpful, the Experts may exclude them from their consideration. It is then for the Court to decide on the value of each Expert’s opinion, on the basis of the materials he used.

38.  However, even leaving aside the mass-produced signatures which the Plaintiff claims are not useful samples, there are 28 signatures now available for the Experts to consider. I agree with the Defendant, that this is a reasonably sufficient pool, and bearing in mind the time span (within 5 years prior to the date of the Promissory Note) of the documents sought under the category of the 20 Additional Samples, it would be disproportionate to require the Defendant to look for and to provide any further documents which can be located, when they were not even contemporaneous in time to the Promissory Note. For that reason, I declined to grant an order for the provision of the 20 Additional Samples.

39.  To render the available samples most useful to the Experts, I have further ordered that the originals of all the Defendant’s passports, both expired and current, in the Defendant’s possession should be put in the custody of the Defendant’s solicitors, for production to the Experts for testing and examination if necessary. This is because Counsel pointed out at the hearing that the 7 signatures in the ID Documents are only photocopies. Upon enquiry by the Court, it was confirmed by the Defendant’s lawyers that the Defendant would be able to produce the originals of his ID Documents. As these are obviously good specimens of the Defendant’s genuine signatures, I have included their production in the order made.

Disposition

40.  The Plaintiff and the Defendant have agreed on the directions contained in a draft order, which I considered and amended, and an order was made in terms thereof.

41.  The costs of the Summons were ordered to be in the cause.

Mr Brian Fan, instructed by MCA Lai Solicitors LLP, for the plaintiff

Ms Abigail Liu, instructed by Henry Wai & Co, Solicitors LLP, for the defendant

HCA 1840/2019

[2022] HKCFI 2936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1840 OF 2019

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D E C I S I O N

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1.  By a summons of 6^th June 2022 (“the Summons”), the Defendant seeks to vary the costs order nisi made in my decision of 23^rd May 2022 (“the Decision”), dismissing the Defendant’s appeal (“the Appeal”) against the decision of Master Cruden of 15^th September 2021 and ordering that the Defendant pay the Plaintiff the costs of and occasioned by the Appeal, with certificate for two counsel, to be taxed if not agreed (“the Costs Order Nisi”). The Defendant says that costs of and occasioned by the Appeal should be in the cause, or alternatively, that he should pay the Plaintiff 75% of the costs of and occasioned by the Appeal.

2.  The Defendant relies on two grounds.

2.1  First, it is said that the dismissal of the Appeal was largely due to the Plaintiff’s change of stance only at the hearing of the Appeal.

2.2  Second, it is said that it was excessive and unnecessary for the Plaintiff to instruct leading counsel.

Relevant principles

3.  The court has a wide discretion as to the appropriate order to be made, costs following the event being but one possible option: RHC O.62 r.3(2A), Cheung Kong Property (Business Development) Ltd v Gold Brilliant Investment Ltd and Another[2021] HKCFI 2330 at [20] to [24].

4.  In exercising its discretion as to costs, the court should take into account the matters set out in O.62 r.5, which includes the conduct of all parties both before and during the proceedings, and the manner in which a party has pursued or defended his case.

5.  Insofar as the Defendant appears to suggest that Midland Business Management Ltd v Lo Man Kui [2011] 2 HKLRD 667 at [9] to [11] encourages the making of orders that costs be in the cause, I do not agree. What Lam J (as he then was) said at [9] to [11] has to be read together with what he went on to say at [12], namely: “However, what I do say is that after Civil Justice Reform the court is more astute to the impact of costs on legal proceedings and an order for immediate payment of costs will be made more readily as a discipline against unmeritorious interlocutory applications.”

The Plaintiff’s change of stance

6.  It is said that prior to the hearing of the Appeal, the Plaintiff had said in solicitors’ correspondence that for the purpose of the appeal, the Defendant had a defence with a reasonable prospect of success, and that the Default Judgment[1] was to be set aside unconditionally, thus rendering paragraph 1 of the Notice of Appeal (which challenged Master Cruden’s decision to set aside the Default Judgment on the grounds that the Defendant had a meritorious defence) academic. The Plaintiff had invited the Defendant to withdraw its appeal on this point and simply argue paragraph 2 of the Notice of Appeal, relating to costs, and had indicated that the Defendant would still be at liberty to argue about the validity of service on such a “costs only” appeal.

7.  The Defendant’s submission is that the Plaintiff had therefore agreed that the issue of regularity of service could in fact be raised at the Appeal, and it was only the Plaintiff’s change of stance at the Appeal (to the effect that it was not open to the Defendant to appeal against the Master’s Costs Order as of right, but only upon showing exceptional circumstances) that led to the Court dismissing the Appeal without consideration of the regularity of service. It is said that “But for the last-minute change of stance, this Court would very likely have progressed to hear the regularity issue in any event… This would have shed a significantly different light on the issue of whether the Appeal was academic.”

8.  However, it is not being said that but for the Plaintiffs’ solicitors’ letters of 30^th November 2021 and 22^nd December 2021, the Defendant would have conducted the Appeal differently and thereby saved costs. As the Plaintiff points out, the Notice of Appeal, which raised the issue of irregularity in paragraph 1, was filed before the Plaintiff’s solicitors’ letters. Furthermore, the Defendant rejected the Plaintiff’s proposals and sought to conduct the Appeal by arguing the issue of irregularity as an independent ground of appeal, rather than as part of a “costs only” appeal.

9.  Insofar as it is said that the dismissal of the Appeal was due to the Plaintiff’s change of stance, I disagree. The Appeal was dismissed because it was academic save as to costs, and there were no exceptional circumstances justifying the hearing of the Appeal. The Plaintiff’s stance in correspondence was also that paragraph 1 of the Notice of Appeal was academic (and paragraph 13 of the Decision did not suggest otherwise).

The instruction of leading counsel

10.  The second ground relied on by the Defendant to vary the Costs Order Nisi is that it was excessive and unnecessary for the Plaintiff to instruct leading counsel.

11.  However, the Defendant is not applying to vary the Costs Order Nisi by revoking the grant of a certificate for two counsel. Nor is the Defendant applying to vary the Costs Order Nisi by limiting the grant of a certificate for two counsel to two junior counsel only. In the circumstances, it is unnecessary and inappropriate to go into the Defendant’s submissions regarding whether it was justified to instruct senior counsel.

12.  Insofar as it is said that instruction of leading counsel should lead to a variation of the Costs Order Nisi such that costs be in the cause or that the Defendant should pay 75% of the Plaintiff’s costs with certificate for two counsel, I do not see the logic of the argument. If the matter has been certified fit for two counsel, there should not be any discount at the same time by reason of the matter not being fit for such counsel.

The Plaintiff’s success in the Appeal

13.  As the Plaintiff says, it has been successful in resisting the Appeal. I see no reason why it should not recover the costs it has had to incur in so doing. Furthermore, appeals which are academic save as to costs are not normally entertained, an important reason being that such appeals are not a good use of the parties’ and the court’s time and resources. They are to be discouraged rather than encouraged. It seems to me that the present case is therefore one in which an order for immediate payment of costs ought to be made “more readily as a discipline against unmeritorious interlocutory applications” (to quote Lam J in Midland Business Management Ltd at [12]).

Disposition

14.  I therefore dismiss the Summons. I further make a costs order nisi that the Defendant pay to the Plaintiff the costs of and occasioned by the Summons, to be summarily assessed. The Defendant is to lodge and serve its list of objections to the Plaintiff’s statement of costs dated 18^th July 2022 within 7 days, and the Plaintiff is to lodge and serve its reply, if any, within 3 days thereafter.

Mr Tom Ng and Mr Brian Fan, instructed by M.C.A. Lai Solicitors LLP, for the Plaintiff

Ms Tiffany Chan, instructed by Henry Wai & Co., Solicitors LLP, for the Defendant

HCA 1840/2019

[2022] HKCFI 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1840 OF 2019

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  By a notice of appeal of 29th September 2021 (“the Notice of Appeal”), the Defendant seeks to appeal against the decision of Master Cruden of 15th September 2021 (“Decision”). By the Decision, Master Cruden:

1.1 set aside the judgment granted against the Defendant in default of notice of intention to defend of 24th August 2020 (“the Default Judgment”) on the ground that the Defendant had good arguable defences on the merits to the Plaintiff’s claims;

1.2 dismissed the Defendant’s application to discharge the order of Master SP Yip of 5th May 2020 (“the Service Out Order”), granting leave to the Plaintiff on an ex parte basis to issue the concurrent writ of summons in this action against the Defendant and to serve a copy of the same on the Defendant out of the jurisdiction; and

1.3 ordered that the Defendant pay the Plaintiff costs of and incidental to his application (“the Costs Order”).

2.  By the time of the appeal, the Defendant no longer sought to pursue the appeal relating to the Service Out Order, as he had already submitted to the court’s jurisdiction and filed a Defence on 25th November 2021.

3.  At the hearing, the parties agreed that I should first consider whether I should hear the appeal, the Plaintiff’s stance being that it was academic and the Defendant had not shown the exceptional circumstances justifying an exercise of discretion in favour of entertaining the appeal. Only if I decided that I should hear the appeal then should I go on to consider it by reference to the merits.

B. THE HISTORY OF THE PROCEEDINGS

4.  The Plaintiff issued the writ in these proceedings on 4th October 2019. Pursuant to the Service Out Order of 5th May 2020, a concurrent writ was issued on 19th May 2020.

5.  The Plaintiff’s process server inserted an envelope containing the concurrent writ through the slit in the main entrance door of 44 Cadogan Square, London, United Kingdom. The Defendant’s stance is that this was irregular service, the Service Out Order having granted leave to the Plaintiff to serve the concurrent writ on the Defendant at Flat 4, 44 Cadogan Square, London, United Kingdom or elsewhere in the United Kingdom.

6.  The Plaintiff obtained the Default Judgment on 24th August 2020.

7.  On 26th November 2020, the Defendant applied to set aside the Default Judgment and discharge the Service Out Order.

8.  Master Cruden set aside the Default Judgment on 15th September 2021, giving leave to the Defendant to file his Defence within 35 days. The terms of the order as drawn up by the Defendant’s solicitors (“the Order”) stated that:

“IT IS ORDERED that:

1. The Final and Interlocutory Judgment dated 24th August 2020 in this action granted against the Defendant in default of notice of intention to defend… be set aside … on the ground that the Defendant has good arguable defences on the merits…”

9.  On 30th September 2021, Master Cruden summarily assessed the Plaintiff’s costs at $988,600.

10.  The Defendant filed his Defence on 25th November 2021. The Plaintiff amended his Statement of Claim in December 2021 and re-amended it in March 2022. The Defendant filed his Amended Defence on 14th April 2022.

C. WHETHER THE APPEAL OUGHT TO BE ENTERTAINED

C1. The parties’ stances

11.  The Defendant has already succeeded in setting aside the Default Judgment and is currently actively defending the Plaintiff’s claim. The question therefore arises as to why he seeks to appeal against the decision to set aside the Default Judgment. It is not seriously denied that the real reason for doing so is for the purpose of supporting the challenge to the Costs Order: the Defendant seeks to argue that the Default Judgment was irregular and that this ought to be reflected in the Costs Order. That being the case, the Plaintiff objects to the appeal on the grounds that the appeal is academic and ought not to be entertained by the court.

12.  The stance of Mr Michael Lok, counsel for the Defendant, was that the issue of whether the appeal was academic was itself an academic one, given that in correspondence some time prior to the hearing, the Plaintiff’s solicitors had invited the Defendant to withdraw or discontinue his appeal against the setting aside of the Default Judgment on the basis that he would thereafter still be at liberty to argue that the Costs Order should be overturned on the ground that service was (allegedly) irregular. It was said, therefore, that the issue of irregularity would have to be determined in any event, in relation to the Defendant’s appeal against the Costs Order.

13.  However, in the course of his oral submissions at the hearing, Mr Abraham Chan SC, counsel for the Plaintiff, indicated that the Plaintiff now took the stance that it was not open to the Defendant to appeal against the Costs Order as of right; the appeal being an academic one, the Defendant would first need to persuade the court that it should exercise its discretion in favour of hearing the appeal, and the court ought not to exercise such discretion unless exceptional circumstances were shown.

C2. The principles

14.  In Re CY Foundation Group Ltd (2014) 17 HKCFAR 863 at [26], Ribeiro PJ reiterated that the Court’s approach to academic appeals was as stated in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at [18]:

“Rarely and exceptionally, the public interest in having a particular point of law decided can be so great as to warrant leave to pursue an application or appeal even though the case has become academic as between the parties save perhaps as to costs. Normally, however, a case should proceed no further…”

15.  An appeal lies against the order made in the court below, and not against the reasons for it. Where the order under appeal was correctly made, even though some of the bases for the making of the order were not accepted, the appeal is academic. Such appeals are not normally entertained: Lau Yue Kui and others v Philip Chan & Co, unreported, CACV 120/2013, 19th September 2013, at [9] per Barma JA.

16.  Where there is no issue between the parties as to the substantive relief to which the appellant is entitled, then even if the costs order would have been different had the court below held in favour of the appellant (that is, in the way contended for by the appellant on appeal), the court would not normally entertain the appeal: Tele-Art Inc v Tam King Ching Kenny and Shum Lap Chi, The Joint and Several Liquidators of Tele-Art Limited (In Liquidation), unreported, CACV 234/2007, 19th March 2008, at [20] to [22], [30], per Rogers VP.

17.  The court retains a discretion as to whether to entertain the appeal: Tele-Art Inc, supra, at [31]. However, it would do so only in rare and exceptional cases: Re CY Foundation Group Ltd, supra, at [18].

18.  The above decisions were in the context of appeals to the Court of Appeal or Court of Final Appeal. It is not, however, suggested that the approach in the present case should be a different one. Mr Lok fairly and frankly acknowledged that whilst an appeal under O.58 is a hearing de novo, there is a prior question of whether the court should exercise its discretion to hear the appeal at all, if the appeal is an academic one.

C3. Whether the appeal is academic

19.  In the present case, I agree with Mr Chan that the appeal is an academic one. Although the Order stated that the Default Judgment was set aside on the ground that the Defendant had good arguable defences on the merits, the mere fact that the reason was expressly stated in the Order does not alter the question of whether the Defendant would be able to obtain substantive relief on an appeal against the Order. The result of the Decision remains that the Default Judgment was set aside: a result in favour of the Defendant and of which he cannot, and does not, complain.

C4. Whether there are exceptional circumstances justifying hearing the appeal

20.  The next question is whether there are exceptional circumstances which justify an exercise of discretion in favour of hearing the appeal. Mr Lok relied on the following matters in this regard: (1) the costs at stake are substantial, (2) there were material non-disclosures by the Plaintiff, (3) the regularity of the Default Judgment is not a “one-off” issue, and (4) the same substantive arguments would have to be ventilated on the appeal, given the Plaintiff’s stance in correspondence that the Defendant could raise the issue of irregularity of the Default Judgment on his appeal against the Costs Order.

C4.1 Amount of costs at stake

21.  An argument that the Costs Order is wrong cannot in itself be an exceptional circumstance which justifies the hearing of an academic appeal, since a complaint that the court erred in its award of costs will underlie most, if not all, attempts to advance an appeal which is academic save as to costs.

22.  The Plaintiff submitted that in any event, even where a judgment entered in default is irregular, it is not inevitable that the defendant would obtain an award of costs in his favour, citing Kwan Kam Wah v Chan Wai Ming [2000] 2 HKC 378 and Liu Chong Hing Bank Ltd v Union World (HK) Ltd [2004] 1 HKC 622 as examples where costs were ordered to be in the cause.

23.  The Defendant has instead pointed to the amount of costs at stake in the present case as being the feature which justified the exercise of the court’s discretion in his favour to hear his appeal. However, whilst the amount of the costs is substantial, it is not disputed that part of the costs relates to the Defendant’s application to discharge the Service Out Order, which failed before the Master and which is not challenged on appeal. No evidence was placed before me to what portion of the costs were attributable to the Defendant’s application to set aside the Default Judgment.

24.  Mr Lok further submitted that the amount of the Costs Order should exceed the reasonable costs of the half-day hearing before the court, the suggestion being that an appeal would therefore not be a disproportionate use of court time. However, it was also the Defendant’s stance that insofar as the Plaintiff wished to place certain material before the court which related to the issue of costs, this could not be done until the court had first determined whether or not the appeal could be entertained. I make no criticism of this stance, which resulted from the nature of the Plaintiff’s material, but it undermines the argument as to proportionality: two separate hearings and determinations would be necessary for the Defendant’s intended appeal.

C4.2 Non-disclosures by Plaintiff

25.  As to (2), the Defendant submitted that there were material non-disclosures as to service (in that the Plaintiff had failed to properly draw attention to the fact that the writ had been inserted through the slit in the main entrance door of 44 Cadogan Square rather than that of Flat 4) and as to whether the Defendant might have good defences to the Plaintiff’s claim on the merits.

26.  Mr Chan submitted that even though the Plaintiff had a duty of disclosure as regards service, the issue of whether the Plaintiff had properly discharged this was simply part and parcel of the argument as to whether service was properly effected in the present case. The Plaintiff had exhibited an affidavit of service from the process server in London, in which the server described how he was unable to gain access into the lobby of the townhouse at 44 Cadogan Square and eventually came to simply post the writ “through the letterbox of the property”. I agree with Mr Chan’s submission that no separate issue of material non-disclosure arises which somehow forms an exceptional feature justifying the court hearing an appeal as to the regularity of the service of the writ; the contents of the Plaintiff’s evidence as to service is simply an aspect of the dispute over the regularity of service.

27.  As to the alleged non-disclosure regarding the Defendant’s potential defences, Mr Lok submitted that there were defects in the Statement of Claim going to the existence or validity of the promissory note which founds the Plaintiff’s claim, and that these ought to have been disclosed when obtaining the Default Judgment. Mr Chan submitted that there was no authority to support the proposition that a material non-disclosure could constitute a ground to set aside a default judgment, save in the case of a judgment granting declaratory relief. Given the essentially ex parte nature of an application for default judgment, I do not consider it appropriate to say that no material non-disclosure could ever be relevant (cf. Sky Joy Investment Limited v Zheng Dunmu and another, unreported, HCA 395/2016, 16th August 2017, at [49] to [50]). In the present case, however, it seems to me that the arguments simply go to the merits of whether or not the Default Judgment should have been set aside for irregularity. In other words, these are simply arguments as to the merits of the appeal, rather than exceptional features which justify the exercise of discretion to hear the appeal in the first place.

C4.3 Regularity of the Default Judgment not a one-off

28.  As to (3), it was said that the question of the regularity of the Default Judgment was not a “one-off”, and the court’s decision could “contribute to the discussion sparked by the recent English authorities cited by D Expert”.[1]

29.  The relevance or utility of a decision is a relevant consideration to take into account when deciding whether to entertain an appeal which is academic save as to costs: Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at [20(3)]. As Ma CHJC (as he then was) went on to say, this may be easier to demonstrate in the sphere of public law rather than in relation to private rights. In the present case, whether service of the writ was properly effected is fact-sensitive. Indeed, Mr Lok’s submissions as to the irregularity of the service relied on matters such as the fact that another process server on another occasion was able to gain access to the interior of the townhouse at 44 Cadogan Square, the fact that there was no letterbox behind the slit in the main entrance door, and on the Defendant’s evidence as to how mail was usually handled at 44 Cadogan Square. I do not agree that a decision as to the regularity of the Default Judgment would provide any particular jurisprudential contribution.

C4.4 Plaintiff’s stance

30.  As to (4), it was said[2] that “crucially, in the present case, the same substantive arguments can and will be ventilated in this appeal in any event”, given that the Plaintiff had indicated that the Defendant would be at liberty to challenge the Costs Order on the ground that the Default Judgment was irregularly obtained. Mr Lok relied heavily on this for his submission that the time and costs which would be required for argument would be the same whether or not the appeal was academic.

31.  However, as noted above, Mr Chan resiled from this position at the hearing. I agree with Mr Chan’s submission that in the event that I find that the appeal is academic (save as to costs), and that there are no exceptional circumstances justifying the hearing of the appeal, there is no room for the Defendant to nevertheless separately advance an appeal as to the Costs Order only by reference to paragraph 2 of the Notice of Appeal. This is because the Defendant’s challenge to the Costs Order is predicated on the challenge to the setting aside of the Default Judgment. It is not being said, for example, that the Costs Order was excessive even if the Master’s decision as to the setting aside of the Default Judgment stands. Accordingly, it is not the case that the issue of the regularity of the Default Judgment would have to be determined in any event.

C4.5 No exceptional circumstances made out

32.  I therefore do not consider that the Defendant has made out any exceptional circumstance which justifies hearing his appeal against the Decision.

D. DISPOSITION

33.  I therefore dismiss the appeal. I further make a costs order nisi that the Defendant should pay the Plaintiff the costs of and occasioned by the appeal, with certificate for two counsel, to be taxed if not agreed.

Mr Abraham Chan SC leading Mr Tom Ng and Mr Brian Fan, instructed by M.C.A. Lai Solicitors LLP, for the Plaintiff

Mr Michael Lok and Ms Tiffany Chan, instructed by Henry Wai & Co., Solicitors LLP, for the Defendant