Read the full judgment text of CACV 425/2002 on BabelCite. This Court of Appeal judgment was delivered on 19 March 2004 before Ma CJHC, Cheung JA, Waung J.
Civil procedure – leave to appeal to Court of Final Appeal – whether unliquidated damages exceeding $1 million threshold give automatic right of appeal under section 22(1)(a) of the Court of Final Appeal Ordinance – whether court should grant leave in discretion – agreement to sell shares – repudiation of share sale agreement – damages assessed by reference to market price less contract price. The plaintiff's claim was for damages for the defendant's repudiation of an agreement to sell shares. The agreement contained no provisions on the amount recoverable or how damages were to be assessed. The trial judge assessed damages at US$555,750 and the Court of Appeal reversed that finding on the basis of contemporaneous correspondence between the parties. The plaintiff sought leave to appeal to the Court of Final Appeal. First issue: whether the plaintiff had an automatic right of appeal under section 22(1)(a) of the Court of Final Appeal Ordinance. Held: no; an award of unliquidated damages, even if it exceeds the $1 million threshold, does not qualify for an automatic right of appeal because the matter in dispute is not of a precise figure. The Court of Final Appeal decisions in Cheng Lai Kwan v. Nan Fang Textiles Ltd. and Shum Kam Fai v. Lam Chi Wai established that section 22(1)(a) only gives an automatic right of appeal where the matter in dispute is of a precise figure, and unliquidated damages are merely assessed and not liquidated. The earlier Privy Council authorities (Macfarlane, Meghji, Allan) were concerned with different issues and did not change this principle. Second issue: whether leave to appeal should be granted in the discretion of the court. Held: no; where the matter is so lacking in merit, leave should not be granted even if the appealable amount is exceeded. The Court of Appeal found no merit in the proposed appeal since its reversal of the trial judge was based on the interpretation of contemporaneous correspondence. Leave to appeal refused with costs to the defendant.
Legal issues: Automatic right of appeal for unliquidated damages under s.22(1)(a) Court of Final Appeal Ordinance · Whether to grant leave to appeal in discretion
Outcome: Leave to appeal to the Court of Final Appeal refused; plaintiff to pay costs to the defendant.
Cited by 4 cases · Cites 2 cases