Asgain Co Ltd v Cheng Ka Yan
Court of Appeal
Miscellaneous Proceedings No. 1019 of 2017
Lam V-P and Barma JA
31 August 2017

Notice of appeal – extension of time for service after leave to appeal granted – delay due to oversight by solicitors acting for appellant – considerations relevant to exercise of court’s discretion – considerations as to costs

D obtained leave to appeal to the Court of Appeal. The notice of appeal (the “Notice”) was served seven days late on 21 June 2017. Despite repeated requests by D’s solicitor (“DS”), P refused to endorse the service out of time. On 28 June 2017, D sought an extension of time to serve the Notice (the “Summons”) and in an affirmation (the “Affirmation”), DS stated that she had overlooked the deadline while enquiring with counsel about para. 23 of Practice Direction 4.1 (the “PD”). By a letter to the Court dated 5 July 2017, P confirmed it would oppose the application.

Held, granting the application, that:

  • This was a proper case for extending time. There was no basis for disbelieving DS’s reason for the late service. It was plain that D had every intention to proceed with the appeal. The seven-day delay, due to DS’s inadvertence and overcautiousness regarding the PD, was excusable. Further, leave had been granted on the merits of D’s intended appeal and there was no good reason to revisit that conclusion. P had suffered no prejudice pending service and the Notice was the same as the draft.
  • P was entitled to the Affirmation from DS to explain the delay and so P should not bear the costs of it. However, after sight of the Summons and Affirmation, P’s opposition to the application was unreasonable. The cut-off point was 5 July 2017. The Court therefore ordered D to pay P’s costs up to 5 July 2017 and P to pay D’s costs thereafter.

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK ( /