Trenus Oceanway Ltd v. Richland International Ltd

HCCW 352/2014

[2021] HKCFI 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 352 OF 2014

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Before: Hon Harris J in Chambers

Date of Hearing: 25 June 2021

Date of Decision: 25 June 2021

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D E C I S I O N

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1.On 1 February 2021 I delivered my decision in respect of the Petitioner’s application to strike out those paragraphs of the amended defence described in [2] of the decision. The Petitioner seeks leave to appeal that decision.

2.The following principles are relevant to this application and are uncontroversial.

(1)  Leave to appeal will generally be granted where there is a reasonable prospect of success or some other reason in the interest of justice for permitting an appeal is demonstrated [1].

(2)  My decision involved the exercise with discretion and the Court of Appeal with any interfere with the exercise for the discretion.  If it is demonstrated, that decision was reached under mistake of law and disregard to principle, or under misapprehension as to facts [2].

(3)  A pleading should only be struck out if it is plain and obvious that it does not show a sustainable defence.

3.It follows that the Petitioner is required to show that there is a reasonable prospect of persuading the Court of Appeal that I misapprehended a relevant legal principle or a material fact with the consequence that what I should have seen as a plainly unsustainable defence I wrongly concluded was arguable.  In practice it follows that the Petitioner should be able to identify succinctly a clear mistake of law or fact in the decision: something crisp and immediately convincing.  In my view it is plain on the face of the Notice of Appeal that the Petitioner’s complaint is not that I made a clear mistake.  The complaint is that it had the better of the argument.  This does not satisfy the test for granting leave.  I dismiss the application.

4.The Petitioner will pay the 1^st Respondent’s costs of the application forthwith, such costs to be taxed if not agreed with a certificate for one counsel.

Ms Jasmine Cheung, instructed by Sit, Fung, Kwong & Shum, for the petitioner

Mr Mike Lui and Ms Theresa Chow, instructed by DLA Piper Hong Kong, for the 1^st Respondent