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CACV 32/2015
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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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(ON APPEAL FROM HCMP NO 1794 OF 2014)

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IN THE MATTER OF the

Inherent Jurisdiction of the
Court

--------------------------BETWEEN
ANGELA HO & ASSOCIATES (A FIRM)
J

KWONG KA YIN trading as

PHYLLIS KY KWONG & ASSOCIATES

---------------------------Before : Hon Cheung CJHC, Barma JA and Poon J in Court

Date of Hearing : 19 March 2015

Date of Handing Down Reasons for Decision : 25 March 2015

________________________

REASONS FOR DECISION

________________________

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Defendant
(Appellant)

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Date of Decision : 19 March 2015

Plaintiff
(Respondent)

and

CIVIL APPEAL NO 32 OF 2015

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Hon Barma JA (giving the Reasons for Decision of the Court):

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This was an application by the respondent plaintiff seeking to

strike out the Notice of Appeal filed by the appellant defendant on

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9 February 2015 on the basis that it was filed out of time.

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At the conclusion of the hearing, we dismissed the application

and made no order as to costs. We also indicated that we would hand

down our reasons for doing so in due course. This we now do.
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For present purposes, it suffices to note that the proceedings

below concerned a claim by the plaintiff against the defendant (both of

whom are solicitors) based on written and oral undertakings allegedly

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given by the defendant to the plaintiff to put the plaintiff in funds to the
extent of some HK$1,695,000 in respect of counsels and the plaintiffs
own fees in HCA 2232/2013. The defendant had earlier acted for some of

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the parties in HCA 2232/2013, but was replaced by the plaintiff as the
solicitors on the record, although the defendant continued to act as a coordinator, in which capacity she gave instructions to the plaintiff. The

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work of its own for which it was entitled to be paid, sought to enforce the

Following a trial of the claim on 19 November 2014, Deputy

High Court Judge Lok reserved judgment.

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On 2 December 2014,

judgment was handed down in which the Deputy Judge found the
defendant liable under the undertakings, which he found that she had

such fees.

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plaintiff having incurred liability to counsel for their fees and having done
undertakings against the defendant when the ultimate client failed to pay

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given. However, at the end of the judgment, the Deputy Judge did not
make a final order in respect of the plaintiffs claim. Instead, having noted

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at paragraph 46 of the Judgment that he had indicated to the parties that he

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would give them an opportunity to make submissions on the precise terms

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of the order to be made, he made what he described as an order nisi

dealing with both the substantive relief to be granted and the costs of the
action.
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Both parties sought to vary the order nisi, both as to the

substantive relief and as to costs. In the event, the part of the order nisi
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as to the substantive relief was varied but the part dealing with costs was
not, following a further hearing before the Deputy Judge on 12 January
2015.
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It is common ground that, pursuant to RHC Order 59 rule 4(1)

(c), if the defendant wished to appeal, the Notice of Appeal had to be

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served within 28 days of the judgment, order or decision concerned. The

dispute between the parties is as to the date of that judgment, order or
decision. The defendant says that the relevant judgment, order or decision

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order made. The plaintiff, however, contends that the relevant judgment,

the defendant is right, the present appeal was brought within time.

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70 days after the judgment, and would thus be out of time, so that it would
be necessary for the defendant to have sought an extension of time for
appealing.

determined the issues in the proceedings below in the plaintiffs favour. If

However, if the plaintiff is right, the appeal would have been brought some

is that of 12 January 2015, when the order nisi was varied and a final
order or decision is that of 2 December 2014, in which the Deputy Judge

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Mr Clark, appearing for the plaintiff, contended that as the

Notice of Appeal states that it is an appeal against the decision of the

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Deputy Judge given on 2 December 2014, as varied by the judge on

12 January 2015, the relevant decision is that of 2 December 2014. He
points out that all of the grounds of appeal set out in the Notice of Appeal

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made on 12 January 2015. Therefore, he says, the appeal is against the

Mr Wong, for the defendant, says that this is not so. He

submits that, although it could be said that the Deputy Judge resolved the
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proceedings were not in fact finally resolved until the final form of the

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In our view, Mr Wong is correct. We do not think that the

Judgment of 2 December 2014 can be said to have resulted in a final

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Deputy Judges suggestion as to a possible form of the order to be made,

which was put forward for the parties consideration. Although the Deputy

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actual order to be made was left open until after further argument had
taken place, unless the parties were able to agree on the terms of the order,
or accepted the suggested order put forward by the Deputy Judge. The

lies.

Judge described it as an order nisi, it was not really an order at all. The
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latter was the relevant judgment, order or decision from which the appeal

resolution of the plaintiffs claim. The order nisi was no more than the
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question of liability in principle by his judgment of 2 December 2014, the

order was made following the hearing on 12 January 2015, so that the

go to that decision, and do not touch on the variation to the order nisi
earlier decision.

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position was thus very similar to one in which the Deputy Judge had
adjourned the proceedings for further argument as to the terms of the order

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before finally disposing of the proceedings. It was not, as sometimes

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happens, a case in which a judge resolves proceedings without spelling out

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the precise terms of the order to be made in such a case, the parties are
left to work out what the judge had in mind, which may result in
competing forms of orders being placed before the judge for him to decide

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made when the judgment is pronounced, and the subsequent discussions or

We also note that the forms of order nisi that the court can

make under the RHC are orders nisi as to costs, which are provided for in

in nature, and may be the subject of alteration on application being made

these are of a somewhat different character.

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There is, however, no

provision, and thus (we think) no power, for the court to make orders
We

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therefore think that Mr Wong was right to say that all that the Deputy
Judge did in paragraph 46 of that Judgment was to leave it to the parties to

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could come back to the court to deal with the matter. As it happened, the
parties had to come back to court for the matter to be dealt with, and it was
resolved on 12 January 2015, when an order was made disposing

RHC Order 1B rule 3. In both of these cases, the order made is provisional

try to agree the precise form of the order to be made, failing which they
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nisi as to the substantive disposition of proceedings before it.

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final order, but might be subject to revision by the judge.

by one of the parties. The rules also refer to garnishee orders nisi, but
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contrast, here, it was expressly envisaged that the order nisi was not the

RHC Order 42 rule 5B(6) and orders giving procedural directions under
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which best reflects the order he has made. In that situation, the order is
disputes as to its terms are as to what order has already been made. By

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substantively of the proceedings below.

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It therefore follows that the time for the defendant to bring

this appeal ran from 12 January 2015, and that the Notice of Appeal served
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on 9 February 2015 was served within time. However, in order to avoid

similar problems as have arisen in this case recurring, we would suggest
that judges refrain from making orders nisi as to matters not provided for

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terms of the relief to be granted, this should be done at a further hearing,

the parties consideration if they think it appropriate or helpful to do so, so

We would add that, even if we had come to the conclusion

adopted by the defendant was entirely understandable, and we would have

view of the prospects of success of the appeal would, in our view, involve

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given the circumstances in which an extension of time would have been

required (had we come to a different view on the main point in this
application), we would have concluded that the appropriate course would

would have granted such an extension. Attempting to come to an informed

a hearing equivalent to the hearing of the appeal itself, and particularly

that the time for appealing ran from 2 December 2015, the course of action
allowed the defendant to apply for an extension of time for appealing, and

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ultimately resolved.

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course, no reason why judges should not put forward a form of order for
long as it is understood that no order is in fact made until the matter is

in the RHC. If it is necessary to have further argument as to the precise

and orders should be made only after such further hearing. There is, of

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be to grant such an extension without detailed consideration of the merits.

In fairness, Mr Clark readily accepted this, and did not suggest otherwise.

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For the reasons explained above, the application was

dismissed. However, as it seemed to us that the plaintiff was not in any

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way at fault in relation to the situation which had arisen, the confusion

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having arisen as a result of the making of the order nisi by the Deputy
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Judge and the way in which the defendant had described the order
appealed from in the Notice of Appeal, and also because the point was
neither clear-cut nor altogether straightforward, we concluded that, in

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costs.

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relation to costs, the fairest course to take would be to make no order as to

(Andrew Cheung)
Chief Judge
of the High Court

(Aarif Barma)
Justice of Appeal

(Jeremy Poon)
Judge of the Court of
First Instance

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Mr Douglas Clark, instructed by Angela Ho & Associates, for the

plaintiff (respondent)
Mr Jonathan Wong, instructed by Phyllis KY Kwong & Associates, for the
defendant (appellant)

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