Kbc Bank N.V. v. Brink’s, Incorporated and Others
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CACV 282/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 282 OF 2012 (ON APPEAL FROM HCCL NO. 14 of 2010) ________________________
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__________________________________ REASONS FOR JUDGMENT __________________________________ Hon Lam VP (giving the Reasons for Judgment of the Court): 1.On 14 August 2015, we handed down our judgment on, amongst other things, costs. We held that notwithstanding the fact that the sanctioned offer of 8 July 2011 only reflected a miniscule discount to the full claim, the Plaintiff was entitled to rely on it to attract the consequences prescribed under Order 22. For the reasons explained in our judgment, we found that it was not a case where the offer could not be regarded as genuine such that it would be unjust to give rise to the sanctioned consequences. 2.The 3rd Defendant, by a Notice of Motion of 14 October 2015, applied for leave to appeal against our costs judgment. The court arranged for the expedited hearing of the motion in view of the pending application before the Appeal Committee regarding leave to appeal against our judgment of 17 July 2014 on the substantive merit of the case (leave was refused by us on 14 August 2015). It is envisaged that if we shall refuse leave in the present application, the 3rd Defendant could apply to the Appeal Committee for leave in respect of both judgments at the same time. 3.Three questions are set out in the Motion of 14 October 2015 as questions of great general or public importance:
4.In our costs judgment of 14 August 2015, we had not regarded the amount of the offer as wholly irrelevant in the exercise of discretion under Order 22 Rule 24(4). Thus, at paragraph 22, we explicitly stated that we did not rule out there might be cases where offers were so disingenuous that they could not justly give rise to the sanctioned consequences. However, as explained in our judgment, we did not find the present case to come within that category. Order 22 Rule 24(5) set out the relevant circumstances and the terms of the offer is one of them. But it is by no means the only factor. It depends on the evaluation of the offer against the available information on the claim (and the defence). Hence, it is clear that the discretion must be exercised by reference to the facts and circumstances of the case. 5.Question 1 as formulated only focus on the quantum of the offer. That is plainly wrong. Further, it should be clear from our judgment that we did have regard to the quantum. But we also had regard to other relevant circumstances and on the facts of the case we concluded that it would not be unjust for the Plaintiff to rely on the offer to attract the sanctioned consequences. It was very much a decision on the facts of this case. 6.On question 2, we disagreed with the 3rd Defendant’s contention that the pleadings did not provide adequate information for the evaluation of the offer, see paragraph 16 of our costs judgment. An appeal against that conclusion is an attempt to challenge our decision on the pleadings in this particular case. No point of general public importance arises. 7.Question 3, by itself, is a non-point. We did not criticize the 3rd Defendant for not accepting the offer. We only applied the law as stated in Order 22 Rule 24. 8.In the circumstances, we do not find the questions framed as raising genuine questions of great, general or public importance for the determination of the Court of Final Appeal. The requirement of s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance is not satisfied. 9.For these reasons, we dismissed the Motion with costs, such costs are to be taxed if not agreed.
Mr Alan Kwong, instructed by Wong, Fung & Co., for the plaintiff Mr Andrew Sheppard, instructed by Tanner De Witt, for the 3rd defendant |
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