George H. Liu and Another v. Take Harvest Ltd.

CACV000035A/1992

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Coram: Hon. Sir Derek Cons, V.P., Kempster & Penlington, JJ.A.

Date of hearing: 1 May 1992

Date of delivery of judgment: 1 May 1992

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J U D G M E N T

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Sir Derek Cons (delivered the judgment of the court):

1. This is an application for leave to appeal to Her Majesty in Council under rule 2(b) of the appropriate Order in Council. That rule provides that

"an appeal shall lie

...

(b) at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, 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 Her Majesty in Council for decision."

2. This is a curious situation in that the applicants were the successful party before this court. In the court below the judge found in favour of the plaintiffs in the sum of approximately $13,000. The defendants appealed. We allowed the appeal, setting aside the judgment in favour of the plaintiffs and entering instead judgment in favour of the defendants for approximately $44,000 on their counterclaim.

We based our decision on a point not taken in the court below and which the defendants expressly declined to take in this court. The point which they did take below, and which they pursued on their appeal to this court, we rejected. We made an order for costs against them. We did not give our reasons at the time but it is quite clear that we based that admittedly unusual order on the fact that the defendants' position, as they wished it to be considered by the courts, left them a loser in both instances.

They now wish to pursue the same point before Her Majesty in Council. It is a point which revolves around the doctrine of the surrender of a lease by operation of law. In the context of Hong Kong, where most interests in land are of a leasehold nature, we feel that the validity and paramenters of the doctrine are a matter of great public importance. We therefore think it proper in the circumstances to grant leave.

Representation:

Michael Thomas, Q.C., and B. Chain (M/s. SO .& Co.) for defendants/applicants

Robert Tang, Q.C., and Nigel Kat (M/s. Chui & Lau) for plaintiffs/respondents