Camberra Investment Ltd v. Chan Wai Tak

CACV000075A/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Silke, V.-P., Hunter & Penlington, JJ.A.

Dates of hearing: 13th December, 1988

Date of judgment: 13th December, 1988

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J U D G M E N T

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Hunter, J.A. :

1. This is an application under order 59 Rule 10(2) for leave to call further additional evidence on the hearing of the appeal. The application has been made in fact after the apparent conclusion of the argument on that appeal.

2. The applicant seeks to put before the Court expert evidence from Mr Edmund Cheung, the Chairman of the Committee on Land Law and Conveyancing of the Law Society. The intent is that he should say two things. First, to the beat of his knowledge and information all solicitors' firms in Hong Kong close at 1 pm on Saturdays. Secondly, there is a well-established and accepted conveyancing practice in Hone Kong that payment of the consideration money should be tendered within normal office hours which range from 9 am to 6 pm. I take it that he is also seeking to say that on a Saturday that normal time expires at 1 pm.

3. It seems to me that there are two fatal objections to this application. The first is that in the words of the Rule "such application shall not be admitted except on special grounds". Mr Litton invites us to give a generous construction to that phrase. This Court has already accepted the principles of Ladd v. Marshall [1954] 1 WLR 1489. The first such principle is that it "must be shown that the evidence could not have been obtained with reasonable diligence for use in the trial". It is probably obvious from what I have already said, that the evidence Mr Cheung could readily have been obtained with reasonable diligence. The reason why it was not obtained is that it was not thought to he relevant. Indeed the argument as developed this morning was another variation of the argument which was put before this Court on the hearing of the appeal. Then the emphasis was upon implied term and "necessity" in Lord Wilberforce's words. Today it is more on terms implied by binding custom. However it is now put, it is quite plain that this evidence was available to be called to the court below, and that it was not called because no one then thought it was relevant. That is no good reason for presenting the evidence now in the Court of Appeal.

4. Secondly, the matter was being put in argument upon the basis of notorious fact. There is a fatal problem about that here. This alleged notorious fact cannot have been known to the managing clerk and at least one of the parties who were busy attending at the solicitor's office well after 1 pm on the material Saturday. This evidence is quite valueless to the defendant unless it is advanced in support of a Plea founded on obligation. It is insufficient to say that it is notorious that solicitors offices' normally close at l pm. What had to be shown here was that there was an obligation to complete before 1 pm. That means contract : it means implied term or custom. There was not a breath of this in the defence before the lower court. In other words, the evidence could not even have been tended there without there first being an application for the amendment of the defence. That application might well have been granted. There might also have been adjournment and then the whole trial would have taken a totally different course. It is in my judgment far too late for this matter to be opened up at this stage on this appeal.

5. For my part, therefore, I would reject this application.

Silke, V.-P.:

6. I agree.

Penlinston, J.A. .

7. I also agree.

Representation:

K H Woo, QC, Wong Po Wing (M/s L H Kwan & Co) for Appellant/Plaintiff

Henry Litton, QC, Petrus Chan (M/s W I Cheung & Co) for Respondent/Defendant