Kensland Realty Ltd (in Compulsory Liquidation) v. Tai Tang and Chong

cacv 44/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 44 of 2006

(on appeal from HCA NO. 74 of 2004)

BETWEEN

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 13 February 2007

Date of Handing Down Judgment: 28 February 2007

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J U D G M E N T

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal under the provisions of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484.  At the conclusion of the hearing of this application judgment was reserved which we now give.

2.The appeal before this court was an interlocutory appeal which concerned an application to strike out the statement of claim and dismiss the action on the basis that it was frivolous or vexatious or otherwise an abuse of the process of the court.  The matter at issue was whether the claim was statute barred.  As referred to in paragraph 8 of this court’s judgment the plaintiff accepted that the cause of action against the defendant accrued when the plaintiff acted on the defendants’ advice and refused to accept the late tender of cheques in the conveyancing transaction.  They relied on section 31 of the Limitation Ordinance Cap. 347, which was set out in that paragraph.

3.In the course of this court’s judgment, the decision of the House of Lords in the case of Haward and others v Fawcetts (a firm) and another [2006] 1 WLR 682 was cited and, in the view of this court, section 31 was applied in the light of what was said in the speeches in the House of Lords.

4.Without wishing to appear too pernickety, it might be observed that whereas section 21(1)(b) requires consideration as to whether the question involved is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal, the Notice of Motion in this case refers to the following “points of general public importance or points in respect of which this court ought otherwise to give leave to appeal”.  Those points were as follows:

“ 1.       Should section 31 of the Limitation Ordinance be interpreted in a way similar to the way in which s14A of the Limitation Act 1980 has been interpreted in the United Kingdom, by the House of Lords in Haward v Fawcetts?

2.       Does the date of knowledge under s31 arise when damage occurs?

3.       Is there relevant distinction under s31 between knowing that advice is wrong, and knowing that it is negligently wrong?

4.       To what extent is a person entitled to rely upon expert advice that it has received for the purposes of s31(7) of the Limitation Ordinance?

5.       In an appeal against an exercise of discretion by a first instance judge, can the Court of Appeal exercise its discretion afresh without having identified why the Judge at first instance stepped outside the generous ambit within which a reasonable disagreement is possible?”

5.The argument turned to a question as to whether this court had applied section 31 in a manner that was consistent with the law as expounded by the House of Lords in that case.  It came as something of a surprise when it was suggested in argument that this court had not followed what was said in Haward and others v Fawcetts.  Despite this court’s view of the matter, which was thus argued to be erroneous, as Mr Sussex SC pointed out, if this court had fallen into error in the way it applied the law in a particular case, specifically, of course, this case, that is not a matter of great or general public importance.  It is, naturally, of importance to the parties in the case, but no more than that.

6.As to the final matter, as Mr Manzoni pointed out in his skeleton argument, this court came to the conclusion in paragraph 10 of the judgment “… the matter is, unfortunately, clear.”  Whilst I do not consider it correct that the determination of the right to bring an action is a matter of discretion, even if it were, this court has set out the reasons for differing from the judge below.

7.I would therefore dismiss this application with an order nisi of costs in favour of the defendant.

Hon Le Pichon JA:

8.I agree.

Mr Charles Manzoni, instructed by Messrs Jonathan Rostron, for the Plaintiff/Applicant

Mr Charles Sussex SC, instructed by Messrs Richards Butler, for the Defendant/Respondent

(I) Appeal to Court of Final Appeal dismissed: see FACV11/2007 dated 7 March 2008 (II) Please refer to FAMV18/2007 for the relevant appeal(s) to the Court of Final Appeal.