Hong Kong Judgment

Court of First Instance

CLARE HOLLINGWORTH v. THOMAS EDWARDS JUSON

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01

Holding and result

Extension of time was granted because the defendant had a bona fide intention to appeal, had filed a notice within the prescribed period albeit in the wrong registry, the mistake was not intentional and the defendant acted promptly on discovering the error; accordingly the court extended time to 9 March 2007 and ordered costs in the cause.

Court disposition

Extension of time granted to file and serve the notice of appeal by 9 March 2007; costs of the application to be in the cause of the appeal.

Orders

  • Grant extension of time to file and serve the notice of appeal before Friday 9 March 2007
  • Costs of the application to be in the cause of the appeal

02

Material facts

Parties

Clare Hollingworth

Plaintiff (respondent) Counsel: Mr. Benjamin Ridgeon (Barlow Lyde & Gilbert)

Thomas Edwards Juson (also known as Ted Thomas)

Defendant (applicant) Counsel: Applicant in person

Amounts and remedies

  • Extension Days: 7

03

Procedural history

  1. Posture

    Miscellaneous Proceedings (intended Appeal) Application for Extension of Time / Interim Application (extension of Time to File Notice of Appeal)

04

Questions and positions

Legal issues

Party arguments

Applicant
Defendant intended to appeal and filed a notice of appeal within time but mistakenly filed it under the High Court action rather than as an appeal in the Court of Appeal; the mistake was not intentional and he applied promptly upon discovery; seeks extension to file and serve the proper notice by 9 March 2007.
Respondent
Plaintiff sought an adjournment of the application for full argument (implicitly to challenge the grant of extension); argued that the application should be argued rather than determined summarily.

05

Court’s reasoning

  1. 01

    Court of Appeal procedural discretion / civil procedure principles

    Court has a discretion to extend time for filing where the applicant acted promptly and the delay is excusable.

  2. 02

    Civil procedure principles on costs

    Costs of interlocutory applications are normally dealt with by order and may be reserved to the cause of the appeal.

06

Ratio, limits and disposition

Ratio decidendi

Extension of time was granted because the defendant had a bona fide intention to appeal, had filed a notice within the prescribed period albeit in the wrong registry, the mistake was not intentional and the defendant acted promptly on discovering the error; accordingly the court extended time to 9 March 2007 and ordered costs in the cause.

Obiter and limits

  • An adjournment for argument of the extension application would be a waste of time as the merits of the appeal can be fully canvassed at the appeal itself.
  • The procedural error of filing in the wrong court registry, when promptly corrected, does not automatically defeat an appellant's right to an appeal.

Court disposition

Extension of time granted to file and serve the notice of appeal by 9 March 2007; costs of the application to be in the cause of the appeal.

  • Grant extension of time to file and serve the notice of appeal before Friday 9 March 2007
  • Costs of the application to be in the cause of the appeal

Source and reliance status

Court of First Instance · 2 March 2007

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Judgment text

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Source document

Court of First Instance

Judgment· 2 March 2007

CLARE HOLLINGWORTH v. THOMAS EDWARDS JUSON

bjbj HCMP 356/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 356 OF 2007 (ON AN INTENDED APPEAL FROM HCA No. 249 of 2006)

BETWEEN Clare Hollingworth Plaintiff (Respondent) and Thomas Edwards Juson also known as Ted Thomas Defendant (Applicant) Before : Hon Cheung JA in Chambers (Open to Public) Date of Hearing : 2 March 2007 Date of Decision : 2 March 2007

D E C I S I O N

AUTONUMOUT I granted the defendant extension of time to file and serve the notice of appeal before Friday, 9 March 2007 and ordered the costs of the application to be in the cause of the appeal.

AUTONUMOUT The defendant had always intended to lodge an appeal against the judgment of Chu J dated 17 January 2007 which was sealed on 23 January 2007. He actually filed a notice of appeal within time on 30 January 2007. However the filing was made under the High Court action instead of under an appeal in the Court of Appeal. The mistake cannot be intentional. As soon as the defendant realised the mistake he took out the present application.

AUTONUMOUT The plaintiff wished to adjourn the defendant s application for argument. In my view this would be a waste of time. The merits of the appeal can be fully canvassed at the appeal itself. (Peter Cheung) Justice of Appeal Applicant, in person, present Mr. Benjamin Ridgeon of Messrs Barlow Lyde & Gilbert, for the Respondent

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