Greatland Property Consultants Ltd v. Charis Patria Ltd

CACV 220/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2015

(ON APPEAL FROM DCCJ NO. 1444 & 1446 OF 2013 CONSOLIDATED)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.At the hearing of the appeal of the two defendants in the consolidated action (collectively “the defendants”), we allowed the appeal, and set aside the judgment of the court below. We further dismissed the plaintiff’s claims against the defendants and entered judgment for each of the defendants against the plaintiff on their counterclaims in the respective sum of $150,000 together with interest. We also ordered the plaintiff to pay the defendants the costs of the consolidated action below and of this appeal, to be taxed if not agreed.

2.The plaintiff applied by Notice of Motion for leave to appeal against our judgment to the Court of Final Appeal. Subsequently, the plaintiff further applied by summons to stay the execution of this court’s judgment. 

3.After we handed down our Reasons for Judgment, the plaintiff issued a second summons to apply to amend the Notice of Motion in respect of the questions on which leave to appeal is sought.  We give leave for the amendments.

4.Under section 22(1) of the Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal in a civil matter may be given if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.In the proposed Amended Notice of Motion, the plaintiff put forward the following as questions of great general or public importance:

“(1)(a) The Court of Appeal erred in law in usurping the function of the trial judge i.e. the fact finding of the latter that Madam Chan, on behalf of the respective defendants, was cognizant of the identity of the purchaser (viz PCA Asset Management Ltd) prior to the execution of the provisional contracts of 4.7.2011.

(b) The aforesaid finding of the trial judge was a result of his having “considered all the evidence of the case”. That means, apart from the respective testimony of Madam Chan and Madam Lee, the documentary evidence which was adduced before him. See A Solicitor v. The Law Society of Hong Kong CACV302/2002 (unreported) 18.2.2004.

(c) In particular, the pleadings of the plaintiffs which averred that Madam Chan was, in any event, apprised of the identity of the purchaser before Madam Lau executed the provisional contracts. And such averment was corroborated by the letter sent by the purchaser (viz. PCA Asset Management Limited) dated 27.4.2012 in response to the investigative request made by the Estate Agents Authority in respect of the misrepresentation complaint lodged by the defendants. The said letter was in the agreed trial bundle with a paginated number 239.

(d) Hence, the aforesaid finding of the trial judge did not run counter to the documentary support aforementioned above. See Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co Ltd & Ors [1998] 3 HKC 153.

(2)(a) Alternatively, prior to Madam Chan appended the identity card number of Madam Lau on the provisional contracts, Madam Lee was then harbouring a suspicion which was in all likelihood well-grounded in view of her being previously apprised of 劉盛昂, the representative of the aforesaid purchaser, the continuation of completing the aforesaid execution did, in law, constitute non-reliance of the misrepresentation. (see Transcript pp.93D – 95I)

(b) Put other way, notwithstanding that Madam Chan was then in doubt as to the identity of the purchaser as represented by Madam Lee, Madam Chan chose not to walk away from the ongoing continuation of the sale transactions, a fortiori, causing Madam Lau to act in the like manner, hence the inference of reliance was rebutted. See Zurich Insurance Co plc v. Hayward [2016] 3 WLR 637 (SC(E)) 652F.

(c) In the circumstance, since Madam Chan did not abort the partial execution of the provisional contracts then and there, the finding of the learned Judge that the defendants had not acted in reliance of the plaintiff’s misrepresentation ought be restored.”[1]

6.In our view, the plaintiff’s application falls far short of what is required of an application for leave to appeal to the Court of Final Appeal.

7.In the first place, what were set out in the proposed Amended Notice of Motion are arguments rather than proper questions for the purpose of an appeal to the Court of Final Appeal.  It has failed to identify any question or issue of great general or public importance that ought to be submitted to the Court of Final Appeal for decision. 

8.Second, an appeal to the Court of Final Appeal is not an occasion for the losing party to re-argue his appeal or to reconstruct his case and arguments in the light of the reasons given by the Court of Appeal.  The points that the plaintiff made in the proposed Amended Notice of Motion were neither raised nor argued at the appeal before us.  There was no respondent’s notice to support the Judge’s finding that the defendants had not acted in reliance of the plaintiff’s misrepresentation on the basis of the purchaser’s letter dated 27 April 2012 or other documentary evidence.  The argument that before the purchaser signed on the Provisional Agreements, Ms Chan’s suspicion had been aroused, such that she ought to have made enquiries as to the purchaser’s true identity, walked away and called off the sales is a new argument that was not advanced before us.      

9.Third, the arguments that the plaintiff now seeks to put forward have no merits.  Importantly, by the time Ms Chan’s suspicion was said to have been aroused, the defendants, acting through Madam Lau, had already signed the Provisional Agreements, and Mr Lau of the purchaser signed immediately after the purchaser’s chop was applied on the Provisional Agreements.  It is, firstly, wholly unrealistic to expect Ms Chan to react within matter of seconds to challenge the true identity of the purchaser and to cancel the sales, bearing in mind that she had up to that point been led by Ms Lee to believe that the purchaser was not the G/F owner.  Secondly, the fact that Ms Chan harboured a suspicion on seeing the purchaser’s English name when the purchaser’s chop was applied on the Provisional Agreements could not have detracted from the fact that the defendants acting by Madam Lau executed the Provisional Agreements in reliance of the misrepresentation as to the purchaser’s identity.       

10.By way of reply submissions, Mr Cheung, who together with Mr Sze act for the plaintiff, seeks to put forward the following as questions of great and general public importance:

“(1) Does “blind-eye knowledge” of the defrauded representee constitute knowledge of the falsity of the representation so much so that the right to rescind is denied?

(2) Is the complaint of the defrauded representee is still maintainable notwithstanding the fact that he had the means of knowledge within his reach and neglected to use them?  Put other way, can the defrauded representee complain if he lay asleep his prudence?” 

11.We have no hesitation in rejecting this attempt to introduce new questions in the reply submission giving the other side no opportunity to respond to them.  If the plaintiff wishes to reformulate the questions or put forward new questions, it should do so properly by making an application to re-amend the Notice of Motion. 

12.In any event, the two new questions are poorly formulated and their meaning is less than clear.  Not only do they attempt to raise new points that had not been argued in the Court of Appeal, the questions also do not arise for consideration when there is no finding that the defendants had turned a blind eye or had neglected to find out the true identity of the purchaser.   

13.For the reasons set out above, we refuse the plaintiff’s application for leave to appeal to the Court of Final Appeal.  While we give leave to amend the Notice of Motion, we dismiss the Amended Notice of Motion.

14.Since we refuse leave to appeal, the application for stay of execution pending appeal to the Court of Final Appeal must also be refused. We dismiss the summons filed on 24 October 2016.

15.Applying the normal rule of costs follow event, we order the plaintiff to pay the costs of the defendants.  Having considered the defendants’ statement of costs for summary assessment, we summarily assess the defendants’ costs of the Notice of Motion and the two summonses at HK$ 55,000.

Mr Jeremy Cheung and Mr Jeffrey Sze, instructed by Eric Yu & Co, for the plaintiff.

Mr Ernest Koo, instructed by Fung & Fung, for the defendants.