廈門新景地集團有限公司 Formerly Known As 廈門市鑫新景地房地產有限公司 v. Eton Properties Ltd and Others

HCCL 13/2011

[2022] HKCFI 3213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 13 OF 2011

(TRANSFERRED FROM HCA NO 961 OF 2008)

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BETWEEN

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Before: Hon Mimmie Chan J in Chambers (Open to Public)

Dates of Written Submissions: 13 and 27 September 2022

Date of Decision: 18 October 2022

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D E C I S I O N

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1.On 18 August 2022, this Court handed down a Decision, granting leave to the Defendants to amend their Statement of Response and to adduce expert evidence. On 30 August 2022, the Plaintiff applied for leave to appeal against the Decision.

2.The nomenclature used in the Decision is adopted herein and below.

3.The grounds of the intended appeal are, in gist, that the Court erred in failing to conclude that the amended pleading is bound to fail at trial; in accepting that the Plaintiff’s loss can be assessed at the date of April 2005, which was before the accrual of the Plaintiff’s cause of action in October 2006; in failing to have regard to the impact of the Defendants’ applications on the trial date; and in finding that the issues proposed for the experts are relevant and necessary as a result of the amendments sought.

4.The intended appeal is against an exercise of the Court’s discretion and case management powers to allow the amendments and the expert evidence. The threshold for such an appeal is high. As Kwan JA reiterated in the case of Mimi Kar Kee Wong Hung v Severn Villa Limited, HCMP 2192/2011, 12 January 2012, at paragraph 31, an appellate court will not generally interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence, or the exercise of his/her discretion was plainly wrong such that it was outside the generous ambit within which reasonable disagreement is possible. On appeal, the appellate court is not asked to re-exercise the discretion on the facts of the case.

5.In the more recent case of DP World Djibouti FZCO and ors v China Merchants Port Holdings Company Limited [2022] HKCA 84, the Court of Appeal highlighted again (at paragraph 22 of the Judgment) the fact that an appellate court adopts a cautious approach in relation to the weight given by the judge to facts taken into account when exercising its discretion. The fact that the appellate court would have given more weight than the judge to one of the many factors to be taken into account in the exercise of the discretion is not a ground for interfering.

6.It was argued for the Plaintiff that the appeal is on law, in that the Court had applied the wrong legal principles in failing to recognize that the proposed amendment, referred to as the P-Design Argument, is doomed to fail, and accepting that the Plaintiff’s loss can be assessed at a date before the accrual of the Plaintiff’s cause of action in October 2006.

7.It has to be emphasized that properly read, the Decision did not accept any contention as to when the Plaintiff’s damages should be assessed, nor did it contain any finding as to how and when the Plaintiff’s damages should be assessed. It was clearly pointed out, at paragraph 14 of the Decision, that how damages should be assessed, and the basis of assessment, including the date to be taken into account for the purpose of assessment, are all questions for determination at trial. At the amendment stage, the Court should not conduct a prolonged investigation of the merits, and shut out a litigant from arguing its case at trial.

8.Bearing in mind the nature of the Plaintiff’s claims and the remedies sought, this Court did not consider that it was readily apparent at the interlocutory stage that the amendments sought are bound to fail at trial. The reasons have been set out in paragraphs 10 to 24 of the Decision and will not be repeated here. It was pointed out in particular (in paragraph 24) that for the remedies sought by the Plaintiff in this case, the Court would have to consider whether it would be unjust or inequitable for damages to be assessed at a particular date, and that this will have to be done in the light of all the circumstances of the case including whether there was any delay. This may arguably include the consideration of what the parties had contracted to do under the Agreement and the parties’ position in April 2005 as contended by the Defendants, but there was no conclusion as to whether damages should be assessed in April 2005, as this is a matter which should and can only be decided at trial.

9.Whether there was delay in the application for amendment, and any impact thereof on trial, was considered in paragraph 13.

10.Given the high threshold required to succeed in an appeal against the exercise of the Court’s discretion and case management powers, I am not satisfied that the intended appeal has reasonable prospects of success. I am not persuaded that the Decision involved any misunderstanding of the law or any erroneous application of the relevant principles, or that the Court had taken into account irrelevant matters, or failed to take into account matters which ought to have been considered, such that the Decision is plainly wrong.

11.The application for leave to appeal is dismissed with costs to the Defendants, with certificate for Counsel, to be summarily assessed if not agreed. The order nisi shall be made absolute unless application for variation is made within 14 days. The Defendants are at liberty to file and serve their Statement of Costs within 7 days and the Plaintiff is at liberty to file and serve its Statement of Objection within 7 days thereafter.

Mr Bernard Man SC leading Mr James Man and Mr Jonathan Ng, instructed by Anthony Siu & Co, for the plaintiff

Mr Benjamin Yu SC, Mr Richard Khaw SC and Ms Bonnie Cheng, instructed by Mayer Brown, for the 1^st and 2^nd defendants