Woomera Company Limted and Another v. Provident Centre Development Limited

CACV000029A/1985

IN THE COURT OP APPEAL

BETWEEN

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Coram: Fuad and Kempster, JJ.A.

Date of Hearing: 8th May 1985

Date of Judgment: 8th May 1985

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JUDGMENT

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Fuad, J.A. :

1. This is an application for conditional leave to appeal to Her Majesty in Council. It is brought under r.2(b) of the Order in Council which regulates such appeals because the decision of this Court which is sought to be appealed against was on an interlocutory appeal.

2. Miss Yuen, for the Applicants, has submitted that the question involved in the appeal is one which, by reason of its great general or public importance, ought to be submitted to Her Majesty in Council and, therefore, gives the Court the discretion for which provision is made by r.2(b).

3. The appeal that came before us was interlocutory because it involved the decision of a High Court Judge who allowed a counterclaim to be further re-re-amended so as to claim damages at common law for the breach of certain contracts for the sale and purchase of a number of flats.

4. What was unusual about this appeal, perhaps, was that for the reasons explained in the judgments which we delivered on the 18th March, we felt that a point had been raised which demanded a decision, for one of the grounds on which the amendments were opposed in the lower court was that they were immaterial and useless. As I recall, the parties invited us to determine this matter. We construed Clause 16 of the relevant agreements (which were all in identical terms) and each of us came to the conclusion that, notwithstanding the presence of Clause 16, the right of the vendors to sue for common law damages, if they were able to prove breaches by the purchasers, had not been taken away.

5. Mr. Kotewall, in opposing this application, did not so  much suggest that the question involved in the appeal did not fall within the criteria prescribed by r.2(b) but, rather, that there were cases which he cited to us, and which were not brought to our attention during the hearing, which tended to support our decision. We were asked to bear in mind, too, that the decision of the Court of Appeal was unanimous and he submitted that the general principle upheld was so fundamental that the Court might well think the point sought to be raised on appeal to Her Majesty in Council had no substance whatever. These were facts that this Court ought to take into account when exercising its discretion under the Rules.

6. We have been told that Clause 16 is a standard one insisted upon by the Law Society of Hong Kong where the sale and purchase of flats under construction is involved and the parties engage the same solicitor.

7. In my judgment, this is a point of great general (and in a sense, public) importance and therefore the intended appeal falls within r.2(b). I can imagine circumstances in which this Court might feel that the intended appeal was so hopeless that it was doomed to failure and therefore decline to exercise its discretion in favour of the intending Appellant on this ground alone, but I do not wish to say any more than that I do not regard the present as such a case.

8. A final decision was given about the effect of Clause 16 and further consideration of that Clause was not reserved. I think that this is a case that should be submitted to Her Majesty in Council for decision and, therefore, would grant the application.

Kempster, J.A.:

9. This appeal relates to one aspect of a dispute which has become quite familiar to this Court and, having regard to the sums of money involved as well as to the public concern in the proper construction of a standard clause, I consider that the conditions laid down for the exercise of our discretion by r.2(b) of the Order in Council made on the 10th August 1909, as amended, are satisfied.

10. I agree with my Lord Fuad, J.A. that, despite the comforting authorities suggesting we were correct which were cited to us, there remains room for argument in this context. Subject to conditions which we shall impose I, too, would allow the application.

Representation:

Miss Maria Yuen (Philip K.H. Wong & Co.) for the Applicants.

Mr. Robert Kotewall (Deacons) for the Respondent.