Ip Pui Lam Arthur And Another v Alan Chung Wah Tang And Others

Cited as:[2019] 4 HKLRD 379
Court:High Court (Hong Kong)
Judgement Number:HCB3819/2011
Judgment Date:27 Aug 2019
Neutral Citation:[2019] HKCFI 2073
HCB3819F/2011 IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND OTHERS

HCB 3819/2011

[2019] HKCFI 2073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 3819 OF 2011

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RE : HO YUK WAH DAVID, a bankrupt
BETWEEN
IP PUI LAM ARTHUR and IP PUI SUM, Joint and Several Trustees in Bankruptcy Applicants
and
ALAN CHUNG WAH TANG and ALISON WONG LEE FUNG YING 1st Respondents
ALAN CHUNG WAH TANG and HOU CHUNG MAN, Joint and Several Trustees in Bankruptcy of the Estate of LEE SIU FUNG, SIEGFRIED, the Bankrupt 2nd Respondents

____________

Before: Madam Recorder Linda Chan SC in Chambers
Date of Hearing: 19 August 2019
Date of Decision: 19 August 2019
Date of Reasons for Decision: 27 August 2019

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REASONS FOR DECISION

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1. On 31 May 2019, this Court ordered the 1st and 2nd respondents to comply with the order made by Au-Yeung J on 7 April 2017 (“Production Order”) within 28 days of the Order [1]. Amongst the 1st and 2nd respondents, Mr Tang and Ms Hou (together “Respondents”),seek to appeal against the Order by filing a Notice of Appeal dated 28 June2019 in CACV 291/2019. On the same day, they issued a summons under Order 59, rule 13 of the Rules of the High Court for a stay of the Order until determination of the appeal. Although §3 of the summons seeks an extension of time for compliance with the Order within 28 days from the date of the determination of the summons, that part of the application is not pursued by Mr Hew, counsel for the Respondents, in his written and oral submissions. At the end of the hearing, I dismissed the summons with costs to be paid by the Respondents to the Trustees with reasons to be handed down. These are the reasons for my decision.

Whether the appeal is competent

2. The Order against which the Respondents seek to appeal was made under Order 45, rule 6(1) to enforce the Production Order, specifically, to give one last chance for the Respondents to comply with it. It seems to me that the Order is an interlocutory order, which requires leave to appeal under section 14AA(1) of the High Court Ordinance. Prior to filing the Notice of Appeal, no application has been made by the Respondents for leave to appeal against the Order.

3. When the point is raised by this Court at the hearing, Mr Hew accepts that the Order does not fall within any of the classes of order stipulated in Order 59, rule 21(1) – (2) but contends that leave to appeal is not required as the Order is not an interlocutory order but a final order. He submits that applying the application test, the Order I made “determines the issues between the parties” raised in the Trustees’ summons for enforcement of the Production Order and, as such, is a final order. I do not think this is right, as the Order is made to give one last opportunity for the Respondents to comply with the Production Order within the new time limit stipulated. It did not “determine the whole action” or “a substantive part of the final trial, or ‘crucial issue’ that goes to the root of the case” or a “dominant feature of the case” in the sense discussed in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222.

4. Mr Hew then changes his submissions and contends that the Order falls within Order 59, rule 21(1)(a), being “a judgment or order determining in a summary way the substantive rights of a party to an action”for the same reason articulated. The submission is misconceived...

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