Permtek Ltd v. China Resources Machinery & Equipment Co Ltd

CACV000025A/1989

BETWEEN

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Coram: Hon Kempster, Clough & Power, JJA

Date of Hearing: 27 September 1989

Date of Judgment: 27 September 1989

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J U D G M E N T

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Kempster, JA:

1. This is an application for leave to appeal to Her Majesty in Council from the decision and order of this court given and made on 17 May 1989 whereby it was held that the defendants were liable to the plaintiff in damages. Argument had been confined to the preliminary issue of liability; the assessment of damages being deferred.

2. Mr Fung, on behalf of the defendants, makes his application on the basis of entitlement by reason of the wording of rule 2 of the Order in Council regulating appeals from this court:

"Subject to the provisions of these Rules, an Appeal shall lie (a) as of right from any final judgment of the Court where ... the Appeal involves, directly or indirectly some claim ... amounting to HK$500,000 or upwards ..."

3. It is common ground both that the judgment with which we are concerned was a final judgment and that the plaintiff clams a sum in excess of HK$500,000. In such circumstances we are satisfied that the defendant is indeed entitled to appeal to Her Majesty in Council as of right.

4. As a matter of record we mention that the cases of McFarlane v leclaire (1862) 15 Moore PCC 181 and Allan v pratt (1888) 13 HL 780, have been canvassed between Bench and Bar. These authorities do no more than lend support for the construction which we favour.

5. We proceed to consider the questions of time and security.

Representation:

Mr Adrian Bell (M/s Wilkinson & Grist) for Appellant/Plantiff

Messrs Daniel Fung & Andrew Mak (M/s Liu, Chan & Lam) for Respondent/Defendant