Civil Procedure High Court Appeals.DOC - 1 Halsbury's Laws of Hong Kong\/90 Civil Procedure High Court(11 Appeals\/1 Appeals from Judgment or Order of A

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Unformatted text preview: 1 Halsbury's Laws of Hong Kong/90 -- Civil Procedure: High Court/(11) Appeals /1 Appeals from Judgment or Order of A Master to A Judge of the Court of First Instance in Chambers (11) APPEALS 1 APPEALS FROM JUDGMENT OR ORDER OF A MASTER TO A JUDGE OF THE COURT OF FIRST INSTANCE IN CHAMBERS [90.1194] Appeals from a master to a judge of the Court of First Instance in chambers An 1 appeal lies to a judge of the Court of First Instance in chambers from any judgment, order 2 or decision of a master, irrespective of whether the judgment, order or decision was given or made on the basis of written submissions only or after a hearing, except in certain cases in which appeal lies 3 directly to the Court of Appeal and two specific instances where the rules provide that no 4 appeal lies at all. The appeal to a judge in chambers is brought by a notice of appeal 5 6 to attend before the judge without the issue of a fresh summons. Unless the court otherwise orders, the notice must be issued within 14 days after the judgment, order or decision appealed 7 against was given or made, and must be served on every other party to the proceedings 8 within 5 days after issue and the appeal may not be heard sooner than two clear days after such 9 service. Where a respondent wishes to cross-appeal, there is no requirement in the rules for 10 a formal cross-appeal but good practice requires that such notice should be given. Except so far as the court may otherwise direct, an appeal to a judge in chambers does not operate as a stay of 11 execution of the proceedings from which an appeal is brought. An appeal from the master is dealt with by the judge in chambers by way of a rehearing of the initial 12 13 summons or application, except that the party appealing must open the appeal. Where the master has a discretionary jurisdiction, the judge in chambers must exercise his own discretion, but, although he is not fettered by the previous exercise of discretion by the master, he will of course give it due weight. Appeals against costs orders involve rather different considerations and an appeal against a master's order as to costs will only be allowed if it can be shown that the order made was unreasonable, or erred in law or either failed to take into account proper matters or took into account matters that should not 14 have been taken into account. If a further appeal is taken to the Court of Appeal, it is the 15 judge's discretion which that court has either to support, vary or reverse. Before the Civil Justice Reform, fresh points might be raised before the judge which were not raised 16 or taken before the master; indeed, it was common practice, subject to the question of 17 costs, for the judge to admit further or additional affidavit evidence. Consequent upon the Civil Justice Reform, no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an 18 appeal under this rule except on special grounds. The Court of Appeal may, however, refuse to grant leave to admit fresh evidence even where the Court is satisfied that special grounds exist 19 20 where there is undue delay in making the application. The costs of the appeal should be asked for specifically by the successful party and, if more than one 21 counsel attends for a party, the judge should be asked to certify that the attendance was proper. Where an appeal is allowed, the costs of the appeal and the hearing below will normally be awarded to the successful appellant. Where, however, the appellant has succeeded on a fresh point raised on the appeal or 22 as a result of fresh evidence not placed before the Master, he may be deprived of them. Where an appellant withdraws his appeal, costs will normally be awarded in favour of the respondent. 23 The court has no jurisdiction to order security for costs in an appeal from a master to a judge in 24 chambers. In an exceptional case the judge may determine a preliminary point without 25 hearing full argument on the other issues. 2 Appeal from the decision of the judge in chambers lies to the Court of Appeal. 1 As to the meaning of 'order' see 26 Kwok Man Chan v Hang Tat Heating System Consultant Co Ltd Lily Hui v Leung Pak Wai [1990] 2 HKC 261 [1996] HKCU 228 (CA) ; (unreported, HCA 6472/1994, 26 January 1996) (SC) . On an O 14 application, where a master has ordered payment in as part of his order granting conditional leave to defend, an appeal lies to the Court of First Instance from a decision as to the amount to be paid in: Wong Hung Yu v Wu Ming Fat [2002] 1 HKLRD 555 , sub nom Wong Hung Yu Richard v Wu Ming Fat Simon [2002] 2 HKC 687 (CFI) (where Ma J pointed out that Hoare v Morshead [1903] 2 KB 359 (CA, Eng) , which held that no appeal will lie, upon a master ordering conditional leave to defend, against the sufficiency of the security ordered, referred to the type of security and not the amount and that it was inapplicable where a payment into court was ordered; his Lordship added that it was doubtful whether Hoare v Morshead above was still good law). 2 Rules of the High Court (Cap 4A) O 58 r 1(1) . For the purposes of such an appeal it is not necessary to draw up the order appealed against, provided it is correctly expressed in the notice of appeal. 3 See [90.1199] . See Clothing Factory v Elbex Video (Hong Kong) Ltd HCMP 2432/2015, 5 November 2015) (CA) 3). Huiyang District Xin Xu Hexing [2015] HKCU 2625 (unreported, (case considered at [90.1199] note 4 No appeal lies from an order of the Registrar as to whether a body corporate may be represented by one of its directors in commencing an action ( Rules of the High Court O5r 6(4) ) or defending an action ( Rules of the High Court O 12 r 1(2B) ). Nor does an appeal lie from a decision of the Registrar revoking any leave given to commence an action ( O 5 r 6(6) ) or defend an action ( O 12 r 1(2D) ). 5 The notice must specify clearly the order which it is sought to obtain, but it is not the practice to set out the grounds of appeal. 6 . Rules of the High Court 7 . As to extension of time see ; and [90.0066] Rules of the High Court Rules of the High Court [90.0069] . See - Cumarasamy ; [1964] 3 All ER 933 , Revici v Prentice Hall Inc [1969] 1 WLR 157 O 58 r 1(2) (CA, Eng) O 58 r 1(3) O3r5 Ratnam v [1965] 1 WLR 8 (PC) [1969] 1 All ER 772 ; , Stevenson v C hartered Bank [1977] HKLR 165 Chiu Butt York v Chiu Kwok Lim , [1977] HKCU 18 [1980] HKLR 459 , ; 593 [1993] 1 HKLR 225 Luk Shau Chun v Kwong Hon Wah [1989] 1 HKC Chiu Sin Chung v Yu Yan Yan, Angela , [1993] HKCU 536 (HC) (HC) at ; (HC) ; 227-228 (CA) [1980] HKCU 34 Tong Yi Sang v Fung Law & Ng ; ; (CA) [1993] 2 HKC 665 Costellow v Somerset County Council [1993] 1 All ER 952 , [1993] 1 WLR 256 (CA, Eng) ; Savill v Southend Health Authority [1995] 1 WLR 1254 (CA, Eng) . Extension of time may be granted by the master before the issue of the notice of appeal, but after its issue or after the time for appealing has elapsed extension can be granted only by the judge: Burke v Rooney (1879) 4 CPD 226 . Where delay in issuing the notice of appeal is not explained or excused or accounted for, the judge in his discretion may refuse to extend the time: Revici v Prentice Hall Inc above; Savill v Southend Health Authority above; Marshall v Gradon Construction Services Ltd [1997] 4 All ER 880 (CA, Eng) (in exercising its discretion under Rules of the Supreme Court O3r5 to grant an extension of time for appealing under Rules of the Supreme Court O 58 r 1 , the court should view the matter in the round and make an overall assessment of what was required by the justice of the case; application for extension of time to appeal against order of master joining applicant as co-defendant; here there was delay of ten months in making application but since limitation period in respect of 3 applicant had already expired when applicant was joined as party, time should have been extended); Wong Kam Hong (t/a Continental Knitting Factory) v Triangle Motors Ltd [1998] 2 HKC 219 [1998] 2 HKLRD 330 (CFI) Pacific Place Holdings Ltd v Sealand Housing Corpn , (five months' delay; reasonable explanation given); [1999] HKCU 1194 (unreported, HCA 3314/1999, 29 September 1999) (CFI) (20 days' delay; alleged reason for delay was difficulty in getting instructions from client; merits not sufficient to justify the delay; no extension granted); Pioneer Venture International Ltd v Lam Cheuk Yui [1999] HKCU 767 (unreported, HCA 11848/1997, 11 June 1999) (HC) (ten months' delay too long; no adequate explanation for delay given; forgetfulness of party of the existence of a witness no excuse; no extension granted); Finnegan v Parkside Health Authority [1998] 1 All ER 595 (CA, Eng) (the absence of a good reason for the delay in filing the appeal was not a sufficient reason per se for the court to refuse to exercise its discretion to extend time under Rules of the Supreme Court O3r5 ; all the circumstances including prejudice to the defendant had to be taken into consideration; Hirst LJ, following Mortgage Corpn Ltd v Sandoes [1996] TLR 751 (CA, Eng) (see further [90.0067] ) and Costellow v Somerset County Council [1993] 1 All ER 952 , [1993] 1 WLR 256 (CA, Eng) , observed that these cases had explicitly disapproved of a rigid mechanistic approach, rejecting that dismissal was inevitable if the applicant failed to show good reason for any procedural default; the case of Savill v Southend Health Authority above had been wrongly decided); Mobil Petroleum Co Inc v Registrar of Trade Marks [2000] 4 HKC 670 , [2001] 1 HKLRD 226 (CFI) ('I am satisfied that with the judgments in Mortgage Corpn plc v Sandoes [1997] PNLR 263 and Finnegan v Parkside Health Authority [1998] 1 WLR 411 (CA, Eng) the law is now settled as to the correct principle to be adopted in the exercise of the court's discretion under Rules of the High Court O3r5 ; it is not the principle ... that, before any discretion is exercised, there must first be an acceptable reason for the delay; it is instead the principle that all matters, including the adequacy of any reason for delay, must be considered, the one to be weighed against the other, in the exercise of the court's discretion', per Hartmann J); Yu Man v Price Waterhouse Coopers [2003] HKCU 243 (unreported, HCA 389/2001, 10 March 2003) (CFI) (appeal from master to judge in chambers; appeal filed more than 17 months out of time; appeal was devoid of merits and would occasion prejudice to other party; leave to appeal out of time refused); Postwell Ltd v Cheng Kap Sang [2004] 2 HKLRD 355 , [2003] HKCU 1209 (CFI) (delay of four years; no adequate explanation for the delay given; the court should be slow to accede to an application for extension of time in the absence of an acceptable reason for the delay; as for the merits, they would play little part in the balancing exercise if the delay was short and was wholly excusable, but where the delay was substantial (as here) and was not wholly excusable, much more merit was required to overcome it, per Deputy Judge Wong SC). 8 . Rules of the High Court O 58 r 1(2) 9 . Rules of the High Court O 58 r 1(3) 10 Chinakong Manufactory Ltd v Uniden Hong Kong [1992] 1 HKC 481 (HC) , per Kaplan J (on Rules of the High Court O 14 application, defendant granted leave to defend on condition of making payment in; plaintiff appealed the order and defendant cross-appealed against order being conditional; Europa Property and Finance Service v Stubbert (1991) Times, 25 November , applied). Where the master makes two orders, one in favour of the appellant and one in favour of the respondent, the fact that the appellant serves a notice of appeal in respect of the order against him does not give the respondent the right to challenge the order in favour of the appellant in the absence of a crossappeal: Young's Engineering Co Ltd v Hang Sing Construction Co Ltd (unreported, HCA 460/1984, 12 October 1984) (HC) . 11 Rules of the High Court O 58 r 1(4) . The court has power to order a stay of execution pending an appeal and such power may be exercised by a master: see Re The Grande Holdings Ltd [2017] HKCU 1822 (unreported, HCCW 177/2011, 20 July 2017) (CFI) (order for liquidators to produce numerous documents relating to the taxation of costs; liquidators appealed against the order to a judge in chambers and applied to the judge for an interim stay of the order pending the hearing of the appeal; Anthony Chan J first observed that the application had been made to a judge in chambers rather than the master who had made the order for production in the erroneous belief that a master had no jurisdiction to grant a stay pending the appeal once the notice of appeal had been served; Rules of the High Court O 32 r 11 conferred upon masters the same jurisdiction as a judge of the Court of First Instance save for certain identified exceptions none of which applied in this case; a 4 master, accordingly, had jurisdiction to grant a stay of execution pending an appeal to a judge in chambers irrespective of whether a notice of appeal had been served; the application should, accordingly have been made to the master who made the order for production; in the instant case it was appropriate for a stay pending appeal to be granted; otherwise the appeal would be rendered nugatory). The court's jurisdiction extends to granting a stay of execution pending the hearing of an application to set aside a default judgment: see Tung Chi Wing Co Ltd v Far East Structural Steelwork Engineering Ltd [2001] HKCU 1413 (unreported, HCA 56/2001, 29 March 2001) (CFI) (the court has inherent jurisdiction to grant a stay of execution pending the hearing of an application to set aside a default judgment; appeal from refusal by master to grant stay of execution pending hearing of application to set aside default judgment; the principles applicable to the granting of a stay of execution pending appeal to the Court of Appeal do not apply to an application to set aside a default judgment since that is not a judgment on the merits, per Sakhrani J); Celestial (International) Securities and Investment Ltd v William Henry Woo [2001] HKCU 1141 (unreported, HCA 9659/2000, 15 November 2001) (CFI) (the legal principles applicable to the granting of a stay are those laid down by Staughton LJ in Linotype-Hell Finance Ltd v Baker (Practice Note) [1992] 4 All ER 887 , [1993] 1 WLR 321 (CA, Eng) . It is for the defendant to show (1) without the stay of execution he will be ruined financially; and (2) he has an appeal which has some prospect of success). More recently judges of the Court of First Instance in exercising their discretion whether or not to grant a stay of execution pending appeal should apply the principles laid down by Ma J in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 (CFI) and repeated in Wenden Engineering Service Co Ltd v Lee Shing Yue Construction Co Ltd (unreported, HCA 4726/2001, 25 February 2002) (CFI) . See, for example, Jebson & Co Ltd v Watfield Technology Ltd [2007] HKCU 1425 (unreported, HCCT 68/2003, 17 August 2007) (CFI) ; Lucky Sun Development Ltd v Gainsmate International Ltd [2007] HKCU 1720 (unreported, HCCT 12/2007, 9 October 2007) (CFI) ; Fu Sau Kwok Barry v Foo Sau Chun Richard [2007] HKCU 1690 (unreported, HCCL 20/2004, 10 October 2007) (CFI) . For the applicable principles see [90.1241] , [90.1267] and [90.1422] . 12 [1971] 1 WLR 123 (QBD) Blundell v Rimmer ; [1971] 1 All ER 1072 , Wai Cheong Co Ltd v Kiu May Construction Co Ltd [1983] 2 HKC 403 (HC) ; Chan Wah (t/a Ka Wah Silk Flower Factory) v Ng Man Ming (t/a Sin Fu Trading Co) (unreported, HCA 5176/1986, 11 December 1986) (HC) ; C P Lin & Co v Kung Wong Sau Hin [1988] HKCU 372 (unreported, CACV 148/1987, 11 March 1988) (CA) ; Killenny Ltd v A-G [1996] 1 HKC 30 (CA) (the practice of the courts for decades has been to treat the appeal as though the matter came before the judge for the first time, per Litton VP). 13 (CA) 14 See Killenny Ltd v A-G [1996] 1 HKC 30 . As for appeals from costs orders see Hoddle v CCF Construction Ltd [1992] 2 All ER 550 (QBD) (judges in chambers should not allow appeals against costs orders by masters unless it can be shown that the order made was unreasonable or erred in law or either failed to take into account proper matters or took into account matters that should not have been taken into account, per Morland J); China Venturetechno International Co Ltd v New Century Chain Development Co Ltd (t/a Century Chain Property Agency) [1996] 2 HKC 68 , [1996] 2 HKLR 18 Lessy SARL v Pacific Star Development Ltd (CA) ; (HC) ; [1997] 3 HKC 306 , [1997] HKLRD 1248 Paul Y ITC Construction Ltd v Kin Shing Co Ltd [1999] 1 HKC 511 (CFI) ('an appeal from a Master only on the question of costs should not be allowed unless it could be shown that the order was unreasonable or the Master had erred in law, ie he had failed to take into account proper matters or had taken into account matters that should not have been taken into account', per Sakhrani J); Man Fong Hang v Man Ping Nam [2002] 4 HKC 538 (CFI) at 544 ('The circumstances under which a judge sitting in chambers on appeal may disturb an order as to costs made by a master are limited. He or she may only do so if the master's order as to costs will only be allowed if it can be shown that the order made was unreasonable, or erred in law or either failed to take into account proper matters or took into account matters that should not have been taken into account'); Incorporated Owners of Pearl Island Garden v Hui Chan Soon Hoy [2006] HKCU 791 (unreported, HCMP 4791/2003, 19 May 2006) (HC) . See further [90.1215] . 5 15 See 478 , Atkin, approving (CA, Eng) 1072 , Evans v Bartlam [1937] 2 All ER 646 [1937] AC 473 at at 648-649 (HL) , per Lord Cooper v Cooper [1936] 2 All ER 542 Blundell v Rimmer [1971] 1 All ER (QBD) . ; [1971] 1 WLR 123 16 Blundell v Rimmer [1971] 1 All ER 1072 , [1971] 1 WLR 123 (QBD) . It is also open to a party appealing from the order of a master to a judge in chambers to take new points on appeal that were not taken at the hearing below: El Vince Ltd v Wu Wen Sheng [2001] 4 HKC 107 , [2001] 3 HKLRD 445 (CFI) (in an appeal from a master by way of a rehearing it is very common for new points to be taken; a party to an interlocutory hearing before a master is not entitled to rely on the other party's conduct of the case as an implied representation that the case will be conducted in the same way on an appeal to a judge in chambers and that no new point would be taken, per Kwan J). 17 See Wai Cheong Co Ltd v Kiu May Construction Co Ltd [1983] 2 HKC 403 evidence on appeals under : per Clough J); Trading Co) (HC) (it is common practice, subject to costs, to let in additional Rules of the High Court O 58 Chan Wah (t/a Ka Wah Silk Flower Factory) v Ng Man Ming (t/a Sin Fu (unreported, HCA 5176/1986, 11 December 1986) (HC) ; Wong Hung Yu v Wu Ming Fat [2002] 1 HKLRD 555 , sub nom Wong Hung Yu Richard v Wu Ming Fat Simon [2002] 2 HKC 687 ; So Kam Wing v Seapower Resources International Ltd (CFI) [2000] 2 HKC 50 (CFI) (summary judgment given under Rules of the High Court O 14 in favour of plaintiff; defendant filed appeal against the summary judgment and applied to judge in chambers for leave to adduce fresh evidence on the appeal; leave was granted by Jones J; plaintiff then appealed to judge in chambers (Cheung J) against order of Jones J granting leave to adduce fresh evidence; held by Cheung J that the defendant's appeal against summary judgment and the plaintiff's appeal against leave to admit fresh evidence should best be heard together); Core Resources (Far East) Ltd v Sky Finders Ltd [1992] HKCU 394 (unreported, HCA 6920/1991, 5 December 1991) (HC) (party sought to place before court evidence of a completely different case from the one advanced before the master and it was common ground...
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