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Cacv000032 2015
Cacv000032 2015
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CACV 32/2015
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ANGELA HO & ASSOCIATES (A FIRM)
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Defendant
(Appellant)
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Plaintiff
(Respondent)
and
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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
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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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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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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.
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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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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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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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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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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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
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provision, and thus (we think) no power, for the court to make orders
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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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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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this appeal ran from 12 January 2015, and that the Notice of Appeal served
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view of the prospects of success of the appeal would, in our view, involve
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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
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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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(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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