Roe Investment Ltd. v. Prince Good Ltd. and Another

FAMV000010/1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMV No. 10 of 1999

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 250 OF 1998)

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FAMV No. 11 of 1999

MISCELLANEOUS PROCEEDINGS NO. 11 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 231 OF 1998 )

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 28 June 1999

Date of Determination: 28 June 1999

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. In permitting Unionix Development Ltd to proceed to seek damages in its action, the Court of Appeal based its decision on its view that Roe Investment Ltd was not entitled to interplead. But was the crucial question whether Roe was entitled to interplead? Or was it whether the effect of the consent order was that Roe's liability to Unionix under the cause of action on which Unionix's action was based had been discharged once Roe had promptly performed the option in conformity with Godfrey JA's decision on the issues pending the trial of which issues that action had been stayed by consent.

2. In our view, it is at least reasonably arguable: (i) that the latter question was indeed the crucial one, and (ii) that the correct answer to it is an affirmative one in Roe and the guarantor's favour. Even on that basis alone we would grant Roe and the guarantor leave to appeal to the Court of Final Appeal. We grant them such leave without limiting the issues which may properly be raised in the appeal.

3. As to the costs of this application, they will be costs in the appeal.

Representation:

Mr Edward Chan SC and Mr Horace Wong (instructed by Messrs Yu, Tsang & Loong) for the applicants Roe and the Guarantor

Mr Warren Chan SC and Mr Liu Man Kin (instructed by Messrs Siao, Wen & Leung) for the respondents Prince Good and Unionix