Credit Agricole v. Crossland Industries Corroration and Another

CACV000063A/1988

BETWEEN

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Coram: Hon. Cons, Ag. C. J., Clough & Power, JJ.A.

Date of hearing: 28th July, 1988.

Date of delivery of judgment: 28th July, 1988.

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J U D G M E N T

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Cons, Ag. C. J. :

1. This is an application for leave to appeal out of time to Her Majesty in Council. Mr. Ho, who appears for the Applicants, contends that, given extra time, their clients have an appeal as of right, and he has asked us to consider that contention first.  He adds that if he should be wrong in his contention, he proposes to adduce no further argument in support of the application.

2. The question raised is whether the decision from which leave to appeal is sought is interlocutory or final.  The judgment in this instance was based on an application under Order 14.

3. In this Court we thought we had laid the distinction between interlocutory and final judgment to rest by our comments in Coronation Electronics Ltd. v. Tharoomals (H.K.) Ltd.⁽¹⁾. Mr. Ho suggests that he is entitled to raise its ghost again, because technically that case is not binding upon us, for it was concerned not with an ordinary Order 14 judgment, but with an order giving leave to defend and on conditions which were subsequently not complied with. Mr. Ho concedes that the general practice in the courts of this territory is to apply what has been dubbed the "application test" in order to decide the nature of the judgment.  He concedes also that the practice is normally applied to ordinary Order 14 judgments.  But he asks us to reconsider the position with respect to them, or at least to make them an exception to the general rule.

4. There is now a statutory method by which an exception can be made to the general rule.  It has been introduced by amendments to the Supreme Court Ordinance which now, by Section 14(4), enables rules of court to be made "to provide for orders or judgments of any prescribed description to be treated for any prescribed purpose connected with appeals to the Court of Appeal as final or as interlocutory."

5. It is clear therefore that the legislature intends any changes in this field to be made as it were by the courts as a whole, rather than by one individual court. As far as I am aware, no change has yet been made or even contemplated. In view of that, and of the very strong comments made by this Court in Coronation Electronics⁽¹⁾, with Order 14 very much in mind, I myself would be extremely reluctant to strike out on my own unless exceptionally good reasons were shown.

6. In Haron bin Mohammed Zaid v. Central Securities (Holdings) Bhd.⁽²⁾ Their Lordships of the Privy Council described the "order test" as "sound and convenient". At the same time however, the "application test" has been firmly adopted in England and has this convenience, that at any stage of the proceedings it is known for certain whether the order eventually to be given will be final or interlocutory.

7. I can see the advantage to Mr. Ho's clients if the order against them is treated as final, and also the commonsense approach that, as far as they are concerned, it is final.  I bear in mind too, that a sufficiently large amount of money is involved to give them an automatic right of appeal were it so. But that is the situation of many an Order 14 defendant and has been so for a long time.  I am not persuaded that it is so exceptional that it requires this Court to act on its own outside the obviously appropriate statutory procedure.

8. In my view therefore the Applicants do not have an appeal as of right.  It follows then, from the position Mr. Ho took in opening, that I would dismiss this application.

Clough, J. A. :

9. I agree with the judgment that has just been delivered. In seeking to persuade us to depart from the established practice of this Court regarding the test for distinguishing between interlocutory and final orders, Mr. Ho has undertaken an Herculean task.  But I would commend him for the high quality of his submissions.

Power, J.A.:

10. I also concur.

(1) [1986] H.K.L.R. 1168

(2) [1983] A.C. 16

Representation:

Ambrose Ho (M/s Chow & Hui Ron Hoa) for 1st and 2nd Defendants/Applicants

Dennis Law (M/s Freshfields) for Plaintiff/Respondent