Greatworth Industrial Ltd v. Chevalier (Construction) Co Ltd

cacv 36/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 36 of 2006

(on appeal from HCA NO. 41 of 2002)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and Burrell J in Court

Date of Hearing : 13 October 2006

Date of Judgment : 13 October 2006

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal from a judgment of this Court dated 27 July 2006.  The background facts to this case can be gleaned from the judgment of this Court and the judgment in the court below of Deputy High Court Judge Muttrie given on 22 December 2005.

2.The application was put on three grounds.  The first ground, namely, that there was an appeal as of right because of the value of the claim, was rightly withdrawn by Mr Cheuk in view of the authorities that were drawn to his attention by Miss Wong, SC, who appears on behalf of the Defendant.

3.As regards the question of great general and public importance, there are two difficulties, it seems to me.  First of all, these are matters of fact and really Mr Cheuk had to argue the case on the basis that even assuming the finding of fact by the judge that the Plaintiff could not have performed this contract, he might have been able to perform some other contract if the contract had been varied in some way.  The other aspect of it is that I do not see how it can possibly be a matter of great general or public importance.  It is only a matter which is relevant to this particular contract and this particular situation.

4.The arguments in relation to the ‘or otherwise’ limb again turn, it seems to me, on questions of fact, if not a question of variation of the contract.

5.In my view, this Court should not give leave to appeal.

Hon Le Pichon JA:

6.I agree.

Hon Burrell J:

7.I agree.

Mr Calvin Cheuk, instructed by Messrs Ho & Ip, for the Plaintiff/Applicant

Ms Lisa K Y Wong SC and Ms Liza Jane Cruden, instructed by Messrs Wong & Fok, for the Defendant/Respondent