PARK YOUNG SOOK v. SHARON MELLOY

PARK YOUNG SOOK v. SHARON MELLOY

The Court held that To J's striking out order was appealable as of right under Order 14; the Court of Appeal's prior refusal to treat the matter as an appeal as of right was irregular; and, because the applicant had shown a clear and strong intention to appeal and her failure to serve a notice in time was inadvertent, leave was granted to serve the notice of appeal out of time within 21 days, with no order as to costs.

Citation
PARK YOUNG SOOK v. SHARON MELLOY
Parties
Applicant/plaintiff: park young sook; Respondent/defendant: sharon melloy
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 September 2010
Case Number
HCMP1727/2010
Procedural Posture
Civil Proceedings Against a Judge; Appeal From Striking Out Order / Court of Appeal – Application for Leave to Appeal and Application to Serve Notice of Appeal Out of Time
Outcome
Grant of permission to serve notice of appeal out of time; prior summary refusal to grant leave held irregular.
Legal Topics
Strike Out Under Order 18 Rule 19(1)(a) Rules of the High Court, Appeal as of Right Under Order 14 High Court Ordinance, Extension of Time to File Notice of Appeal (order 59 Rule 4(1)(c)), Rule 2 A(5) and 2 A(8) Rules of the High Court, Inherent Jurisdiction to Strike Out Appeals
Source Language
EN
Civil Procedure Appellate Procedure Family Law Judicial Immunity Abuse of Process Strike Out Under Order 18 Rule 19(1)(a) Rules of the High Court Appeal as of Right Under Order 14 High Court Ordinance Extension of Time to File Notice of Appeal (order 59 Rule 4(1)(c)) +2 more

Case Brief

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Parties

park young sook

Applicant/plaintiff

sharon melloy

Respondent/defendant

Procedural Posture

Civil Proceedings Against a Judge; Appeal From Striking Out Order / Court of Appeal – Application for Leave to Appeal and Application to Serve Notice of Appeal Out of Time

Legal Issues

  1. 1 Whether the Court of Appeal's earlier refusal to grant leave was regular
  2. 2 Whether the order of To J striking out the claim was appealable as of right under Order 14
  3. 3 Whether the applicant should be permitted to serve a notice of appeal out of time

Ratio Decidendi

The Court held that To J's striking out order was appealable as of right under Order 14; the Court of Appeal's prior refusal to treat the matter as an appeal as of right was irregular; and, because the applicant had shown a clear and strong intention to appeal and her failure to serve a notice in time was inadvertent, leave was granted to serve the notice of appeal out of time within 21 days, with no order as to costs.

Court Disposition

Grant of permission to serve notice of appeal out of time; prior summary refusal to grant leave held irregular.

Orders

  • Leave granted to Ms Park to serve a notice of appeal against To J's order dated 30 June 2010 out of time
  • Ms Park to serve the notice of appeal within 21 days from the date of this order