Guo Jianjun v. Dragon Fame Investment Ltd

CACV 131/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2014

(ON APPEAL FROM HCMP NO. 318 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.We handed down our judgment dismissing this appeal on 23 September 2015. By a Notice of Motion of 20 October 2015 [“the Motion”], the Defendant applied for leave to appeal to the Court of Final Appeal. In the Motion, 2 questions were framed as questions of law which the Defendant submitted as questions of great general or public importance. With respect, the questions could have been drafted in a more succinct manner. Instead of quoting them as stated in the Motion, we shall summarize the first question as a challenge to the exclusion of post contract matters in the assessment of the duty to supply the architect’s certificate within reasonable time. The second question is a challenge to the adoption of a general assumption of reliance on mortgage finance.

2.Pursuant to directions for paper disposal, counsel lodged written submissions on the application. 

3.We now give our decision on the Motion. 

4.It should be noted at the outset that these questions relate to our conclusion in upholding the judge’s finding that the Defendant was in breach of the duty to supply the certificate within reasonable time before completion.  The first question was advanced in connection with paragraph 49 of our judgment where we held that what happened after the certificate had been supplied was not relevant in light of paragraph 70 in Kensland Realty Ltd v Whale View Investment Ltd (2001) 4 HKCFAR 381.  The second question was in connection with paragraph 50 of our judgment.  In that paragraph we held that one should proceed on the general assumption that purchasers would rely on mortgage finance in conveyancing transactions in Hong Kong, following what was said at paragraph 71 of Kensland Realty.  

5.On the first question, Mr Yu SC relied on a number of authorities which were not cited to us during the course of the substantive appeal to contend that post contract matters could be taken into account in assessing what was a reasonable time: Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239; Lewison, Interpretation of Contracts, 5^th Edn, paragraph 6.16; Chitty on Contracts 31^st Edn Vol 1 paragraph 21-021.

6.In light of these additional authorities, we are prepared to proceed on the basis that the question itself is reasonably arguable.  However, we are not satisfied that it would make any difference in the end result if one were (contrary to what we held at paragraph 49) to take account of the correspondence after the certificate had been supplied.

7.An important feature in this case is that the certificate was only supplied after office hours.  At paragraph 46 of our judgment, we endorsed the judge’s approach at paragraph 49 of his judgment. The resolution of the first question in favour of the Defendant would not assist it in that regard.

8.On the second question, Mr Yu failed to persuade us that it is reasonably arguable that we were wrong in following paragraph 71 of Kensland Realty.

9.In the Motion, it was also contended that leave should be granted on the “otherwise” limb.  The matters relied upon were simply another way of arguing the second question.  We are not satisfied that we should grant leave on that basis.

10.For these reasons, we dismiss the Motion. Parties did not place before us any statement of costs.  We shall simply order the Defendant to pay the Plaintiffs’ costs of the Motion, such costs to be taxed if not agreed.

Mr Lee Yee Hung, instructed by King & Wood Mallesons, for the plaintiffs

Mr Benjamin Yu, SC and Ms Eva Sit, instructed by Hart Giles, for the defendant