Onway Engineering Ltd v. Chinney Construction Co Ltd

cacv 402/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 402 of 2005

(on appeal from HCCT NO. 10 of 2002)

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BETWEEN

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

Date of Hearing: 1 June 2007

Date of Judgment: 1 June 2007

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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 out of time.  Mr Chan, very candidly, has said that he really cannot offer a great deal of excuse, except that his client was in the Mainland.  But these days communication with the Mainland is not that difficult.  There are all sorts of ways of communicating with the Mainland, even if somebody does not travel down, and it is not that difficult to travel from the Mainland to Hong Kong.

2.The short fact of the matter is that the client left it until it was too late to have a conference to consider the matter and that really is no excuse at all.

3.Having said that, one then looks at what any appeal might be and I have grave difficulties in discerning what the grounds of appeal would be.  The matter before this Court was primarily one of fact and this Court upheld the judge below on the question of fact and, therefore, there are now concurrent findings of fact, so that is going to make any appeal to the Court of Final Appeal a little difficult.

4.Apart from that, I regret to say that I am still unable to discern, despite asking Mr Chan, what the point of law is that is supposed to arise on section 32A of the Companies Ordinance.

5.In those circumstances, I consider this application for leave has to be refused.

Hon Le Pichon JA:

6.I agree.

Hon Chu J:

7.And I agree.

Mr Kenneth C L Chan, instructed by Messrs Rowdget W Young & Co., for the Plaintiff/Applicant

Mr Peter Clayton, SC, instructed by Messrs Wong & Fok, for the Defendant/Respondent