Civil Procedure

In [2025] HKCFI 1467, all defendants therein unsuccessfully applied to convert the proceedings into writ action. Leave was then sought to appeal the decision, which was entirely dismissed. 

Earl Deng, instructed by Messrs. Liu, Chan & Lam, appeared for all plaintiffs in the 3 cases (heard together). Valerie Tang provides her analysis on the judgment hereinbelow. 

Facts 

By a decision dated 13 November 2024, the Court dismissed the defendants’ applications to convert the proceedings into writ action (the “Conversion Applications” and the “Conversion Decision”). The defendants thereafter applied for leave to appeal against the case management decision (the “Leave Applications”), and the Court directed that the Leave Application be disposed of on paper. 

Relevant Law 

The legal principles for leave to appeal applications are trite. Leave will only be granted if the appeal either has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. “Reasonable” means that the prospect of success should more than fanciful but need not be probable. 

For applications made in the specific context of case management decisions, the appellant faces a “very high hurdle” and must show that the judge has clearly erred and that the order involved an injustice or was irrational having regard to the issues to be resolved. 

The Decision 

The Leave Applications were wholly dismissed. 

Three main grounds were raised by the defendants. 

First, the defendants complain that they did raise disputes as to the communal nature of lifts, escalators and washrooms. On that basis, it was contended that maintenance costs of such facilities should not be included in the budget (the “Wrong Inclusion Issue”). This ground was plainly rejected by the Court as the defendants’ counsel had in fact already unequivocally abandoned the Wrong Inclusion Issue when the Conversion Applications were argued. The defendants were not allowed to reverse their position. 

The defendants further allege that it was plainly wrong for the Court to find no sufficient ground to call witnesses for cross-examination, as there were factual disputes about whether there was double calculation of the costs for certain facilities, and the basis of the non-allocation of expenses for some owners despite express provisions under the DMC. The defendants further complained that the Court omitted to take into account their latest discovery summons (the “Discovery Summons”). 

In considering this ground, the Court noted that the alleged factual disputes as well as the Discovery Summons were never raised by the defendants at the Conversion Applications. There was also no factual basis to substantiate the alleged factual issues, and do not justify cross-examination.  

Lastly, the defendants alleged that the Court erred in law by finding there to be no need to cross-examine the plaintiffs’ witnesses on the issue of attribution and apportionment of management expenses. This was also dismissed as the Court had already concluded in the Conversion Decision that these are non-issues and can be resolved without cross-examination. 

Takeaways 

In dismissing the Leave Applications, the lack of merits aside, the Court remarked that the Notice of Appeal (NOA) is prolix, and the defendants’ written submissions were not well-organised and even included new allegations and arguments not in the NOA. 

This is another reminder of what is required in such leave applications. Aa stressed by the Courts time and again in other judgments, and expressly stated in Practice Directions 4.1, “[a] notice of appeal should be a concise document setting out clearly and succinctly the reasons why the Court should interfere with the judgment of the court below” (§20). Practitioners should be aware that a NOA should not read like a set of submissions, and “must not be prolix, unfocused, or canvass evidence or submissions at length” (§22). 

Earl Deng

“Earl is strong in thinking outside the box while being comprehensive in his legal research, avoiding the risk of tunnel vision in the field, which often hampers effectiveness of some public interest lawyers. Because of his research skills and comprehensiveness, he is a brilliant junior.”
Legal 500 Asia-Pacific 2025, Administrative and Public Law, Commercial disputes, and Labour and employment — Tier one Leading Juniors

Earl Deng read Law at the University of Cambridge, Fitzwilliam College on a Prince Philip Scholarship Bursary and was called to the Hong Kong Bar in 2008, joining Chambers in the same year.

Earl has an active civil law practice involving advisory and advocacy work in complex commercial, contractual, chancery, and intellectual property disputes and is known as a specialist advocate for public and administrative law matters and sexual minority rights.

Earl is also a regular contributor to a large volume of practitioner publications, and has authored original chapters and volumes, including Chitty on Contracts (Hong Kong Specific Edn.), Employment Law and Practice in Hong Kong, Discrimination Law in Hong Kong, and various volumes of Halsbury Laws of Hong Kong.

View Earl’s profile for more details.

Valerie Tang

“Valerie is quick-witted, articulate in her advocacy and very knowledgeable with a sharp legal intuition. She is definitely a rising star in the legal industry and one to look out for.” 
Legal 500 Asia-Pacific 2025, Commercial Disputes, Rising Star

Valerie was called to the Hong Kong Bar in 2019. She enjoys a broad civil practice with a special focus on company and commercial law. Valerie is also well-versed in family law, and has experience in land, probate, personal injuries, employment and mental health-related matters.

Prior to obtaining her law degree from the Chinese University of Hong Kong, Valerie read International Relations at the London School of Economics and Political Science. She also worked at the Legislative Council of Hong Kong from 2015 to 2018 during which she was involved in policy research and bill drafting.

Valerie is fluent in English, Cantonese and Mandarin, and she accepts instructions in all areas of work.

More details can be found in Valerie’s profile.

This article was first published on 24 April 2025.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.