HOOVER FOOD SUPPLIER LTD v. TABOCTABOC, CECIL CRUZ

HCSA 25/2019

[2019] HKCFI 1923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 25 OF 2019

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D E C I S I O N

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1.  On 21 June 2019, the applicant (who was the respondent in SCTC 4270/2019, (“TCC”)) took out an application for leave to appeal against the decision made by Adjudicator Mr David Cheung (“the Adjudicator”) in the Small Claims Tribunal (“SCT”) on 14 June 2019.

2.  Small Claims Tribunal Ordinance, section 28 provides:

“(1) Any party who is aggrieved by a decision of the tribunal—

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the tribunal,

may apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave if it thinks fit.

(2) An application for leave to appeal under this section shall be—

(a) in the prescribed form, specifying the ground of the appeal and the reasons in support of such ground; and

(b) lodged with the Registrar of the High Court within—

(i) 7 days after the date on which the written award or order is served on the aggrieved party; or

(ii) if within that period the aggrieved party applies to the tribunal for the reasons for the award or order, 7 days after the date on which the reasons are served on him; or

(iii) such time as may be extended by the Registrar of the High Court on good cause.”

3.  Since the application taken out on 21 June 2019 is seeking leave to appeal from the decision made by the SCT on 14 June 2019, I am satisfied that the application was made in time.

4.  The relevant procedural background is as follows:

(1) On 28 January 2019, the claimant commenced proceedings in the SCT against TCC for price of food supplied to TCC’s restaurant. On 6 March 2019, the matter was tried before the Adjudicator. TCC was absent in the trial. At the end of the hearing, the Adjudicator allowed the claimant’s claim and made a judgment against TCC (“the Judgment”).

(2) On 12 March 2019, TCC made an application for an order to set aside the Judgment (“the Setting-aside Application”). The Setting-aside Application was heard and dismissed by the Adjudicator on 14 June 2019. Reasons for the decision made on 14 June 2019 were handed down on 15 July 2019 (“Reasons for the Decision”).

5.  As shown in the Reasons for the Decision, the Adjudicator has considered the 8 factors set out in Shocked v Goldschmidt [1998] 1 All ER 372. The Adjudicator held that the service of documents in the proceedings was regular service and refused to accept the explanation offered by TCC in respect of his absence in the hearing on 6 March 2019. The Adjudicator also concluded that TCC did not have a real prospectus of success in his defence. Having considered all these, the Adjudicator dismissed the Setting-aside Application.

6.  Having heard and considered TCC’s submissions, and having reviewed the decision made by the Adjudicator, in my view, the Adjudicator did not err on any point of law. Further, it is plain and obvious that the Adjudicator has the jurisdiction to dismiss the Setting-aside Application.

7.  In my judgment, there is no merit in TCC’s application for leave to appeal. I dismiss the application.

8.  Since this is an ex parte application, there be no order as to costs.