Esquire (Electronics) Ltd v. The Hong Kong and Shanghai Banking Corporation Ltd and Another

cacv 312/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 312 of 2005

(on appeal from HCA NO. 11077 of 1994)

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BETWEEN

AND BETWEEN

Before: Hon Rogers, Tang VPP and Stock JA in Court

Date of Hearing: 2 March 2007

Date of Judgment: 2 March 2007

Date of Handing Down Reasons for Judgment: 9 March 2007

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal.  At the conclusion of the hearing of this application, leave was refused with reasons to be given in writing which we now do.

2.The facts of these cases are contained in the judgments of this court handed down on 12 October 2006.  The application for leave to appeal was originally based on section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance Cap. 484.  Following correspondence between the parties, the plaintiffs have amended their applications.  Not only has the argument in respect of section 22(1)(a) been changed but section 22(1)(b) is now also relied on.

3.Turning first of all to the application under section 22(1)(a), although the arguments in relation to the three causes of action namely breach of fiduciary duty, economic duress and undue influence all had as part of the factual matrix the sale of Li Fung House, the claims in the actions were for damages.  Those damages were unliquidated.  The Court of Final Appeal has, on more than one occasion, said explicitly that claims for unliquidated damages do not fall within the purview of section 22(1)(a).

4.In order to avoid the objection which was raised by the defendants, the plaintiffs sought to rely on the fact that they attempted in the course of interlocutory proceedings in the inquiry for damages to insert a claim based on equitable rescission.  That attempt failed.  The pleadings in the inquiry which related to that were struck out.  Although, as has been pointed out, there was an appeal outstanding at the date that these appeals were decided, the matter remains as it is at present.  Moreover, as Mr Harris SC, who appeared on behalf of the plaintiffs, conceded, rescission could not be granted in this case for a number of reasons.  Whatever relief the plaintiffs might possibly be able to obtain it could only be damages in lieu of some other remedy.  This is emphasised by the fact that the claim based on equitable rescission was only raised as part of the inquiry as to damages.

5.The argument was then put on the basis that there was a claim or question to or respecting property of the value of $1 million or more.  In my view the same difficulty arises because the claim is in respect of the causes of action pleaded and not in respect of the property as such.

6.In so far as the matters that are sought to be raised in respect of section 22(1)(b) relate to matters of law they relate to established principles in respect of which there is no dispute.  Some of the matters listed do not even constitute matters of law.  But, be that as it may, the most that might be argued was that this court did not apply the established principles correctly.  That does not raise issues of great general or public importance albeit it could raise issues that are of importance to the parties.

7.It was finally said that leave should be given under the “or otherwise” provision.  Quite apart from the fact that it is primarily a matter for the Court of Final Appeal to consider whether it is appropriate to give leave under this provision, the matters that are sought to be raised, namely that there was extraordinary delay between the end of the trial and the delivery of judgment and the fact that the judge had made trenchant findings as to the respondent’s conduct with which this court did not agree, do not of themselves give rise to grounds upon which this court would itself grant leave.

Hon Tang VP:

8.I agree.

Hon Stock JA:

9.I too agree.

Mr Paul Harris SC, instructed by Messrs Ho, Tse, Wai & Partners, for the Plaintiff/Applicant

Mr John Jarvis QC, Mr Joseph Fok SC & Mr Eugene Fung, instructed by Messrs Johnson, Stokes & Master, for the 1^st Defendant/Respondent