Carewins Development (China) Ltd v. Bright Fortune Shipping Ltd
Read the full judgment text of CACV 328/2006 on BabelCite. This Court of Appeal judgment was delivered on 6 November 2007 before Ma CJHC, Barma JA, Reyes JA.
Shipping law – bills of lading – misdelivery – unliquidated damages – interest on damages – Court of Final Appeal – leave to appeal – Hong Kong Court of Final Appeal Ordinance (Cap. 484) s.22(1) – Carriage of goods by sea – The plaintiff, Carewins Development (China) Limited, brought two actions against Bright Fortune Shipping Ltd and HECNY Shipping Ltd for misdelivery of goods handed to a consignee without production of bills of lading – The Court of Appeal awarded unliquidated damages of US$111,788.10 in HCCL 49/2004 and US$761,239.90 in HCCL 50/2004 by its judgment of 13 July 2007 – On 6 November 2007, the court determined the plaintiff's application for interest and the defendants' application for leave to appeal to the Court of Final Appeal – Whether interest should run from the date of breach (misdelivery) – Held: interest runs from 22 April 2003, the date of misdelivery, the cause of action having accrued at that time – McGregor on Damages (17th Edition) at paragraphs 15-065 to 15-066 referred to – Whether the usual rate of 1% above prime should be departed from – Held: no, the plaintiff failed to adduce evidence justifying a higher rate – Whether the defendants' seven proposed grounds of appeal raised points of great general or public importance under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 – Held: no; the first two grounds (straight vs negotiable bills of lading) were not reasonably arguable; the next three grounds concerned construction of the particular bills of lading and turned on the language used; the final two grounds concerned a freight counterclaim resolved on the facts – Whether the 'or otherwise' ground in s.22(1)(b) was engaged – Held: no, no exceptional circumstances were shown, applying Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260 – Interest awarded at 1% above prime from 22 April 2003 to 13 July 2007 and at judgment rate thereafter until payment – Defendants' application for leave to appeal dismissed – Subsequently, leave to appeal was granted by the Court of Final Appeal in FAMV 65/2007 dated 28 April 2008, and the appeal was dismissed in FACV 13/2008 dated 12 May 2009.
Legal issues: Date from which interest runs on unliquidated damages for misdelivery · Appropriate rate of interest on damages · Leave to appeal to the Court of Final Appeal on grounds of great general or public importance · Leave to appeal on the 'or otherwise' ground
Outcome: Plaintiff's application for interest granted; defendants' application for leave to appeal to the Court of Final Appeal dismissed by the Court of Appeal on 6 November 2007. (Subsequently, leave was granted by the Court of Final Appeal in FAMV 65/2007 dated 28 April 2008, and the appeal was dismissed in FACV 13/2008 dated 12 May 2009.)
Cited by 5 cases · Cites 3 cases
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CACV 328/2006 & 329/2006 CACV 328/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 328 OF 2006 (ON APPEAL FROM HCCL NO. 49 OF 2004) ______________________ BETWEEN
______________________ AND CACV 329/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 329 OF 2006 (ON APPEAL FROM HCCL NO. 50 OF 2004) ______________________ BETWEEN
______________________ (Heard Together) Before : Hon Ma CJHC, Barma & Reyes JJ in Court Date of Hearing : 6 November 2007 Date of Judgment : 6 November 2007 ______________________ J U D G M E N T ______________________ Hon Ma CJHC : 1.There are two applications before the court this morning : first, the Plaintiff’s application for interest on the sums awarded to it as damages against the two Defendants and secondly, the Defendants’ application for leave to appeal to the Court of Final Appeal under section 22(1) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 (“the Ordinance”). Interest 2.In the judgment of this court handed down on 13 July 2007, damages in the sum of US$111,788.10 were awarded in the Plaintiff’s favour in HCCL 49/2004 and US$761,239.90 in HCCL 50/2004. These damages, unliquidated in nature, were in respect of the misdelivery that took place when the Plaintiff’s goods were handed to a consignee without the production of the bills of lading. 3.In a contractual claim, interest usually runs from the date of breach (the date when the cause of action accrued) but the courts are of course entitled, in the exercise of the broad discretion they have regarding interest, to use a date which may be more appropriate, for example, where the loss does not immediately arise : see McGregor on Damages (17th Edition) at paragraph 15-065 to 15-066. In the present case, the cause of action (both the breach of contract and conversion) accrued at the time when the misdelivery took place (which was the time that the Plaintiff sustained its loss when it lost the relevant goods). Although there is no precise date for this, it is clear from the judgment of Stone J in the court below that this was no later than 22 April 2003. I am content to use this date. 4.As for the rate of interest, I see no reason to depart from what is the usual : 1% above prime. Although Mr Benjamin Chain (for the Plaintiff) has contended for a higher rate, there is very little, if any, evidence to justify this. 5.Accordingly, there will be interest at the rate of 1% above prime rate for the period from 22 April 2003 to 13 July 2007 (the date when the judgment of this court was handed down) and thereafter at judgment rate until payment. “Prime rate” means the prime rate of lending of the Hong Kong and Shanghai Banking Corporation from time to time during the relevant period. Application for leave to the Court of Final Appeal 6.The damages awarded against the Defendants being in the nature of unliquidated damages, there is no appeal as of right under section 22(1)(a) of the Ordinance. 7.As for the application under section 22(1)(b) of the Ordinance, Mr Colin Wright (for the Defendants) has advanced seven grounds said to be points of great general or public importance. 8.For my part, I would refuse leave under section 22(1)(b) of the Ordinance. For convenience, I will refer to the Grounds of Appeal set out in the Notice of Motion taken out by Bright Fortune Shipping Ltd : -
9.Mr Wright finally relies on the “or otherwise” ground in section 22(1)(b) of the Ordinance. But exceptional circumstances have to be shown : see Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260. None exist in the present case. 10.For the above reasons, I would dismiss the Defendants’ application for leave to appeal to the Court of Final Appeal. Hon Barma J : 11.I agree with the judgment delivered by the Chief Judge in relation to both applications before us. Hon Reyes J : 12.I also agree.
Mr Benjamin Chain, instructed by Messrs Ho, Tse, Wai & Partners for the Plaintiff in both appeals Mr Colin Wright, instructed by Messrs H.H. Lau & Co for the Defendants in both appeals (I) Appeal dismissed: see FACV13/2008 dated 12 May 2009 (II) Defendants' application for leave to appeal to Court of Final Appeal granted by Court of Final Appeal. Please refer to FAMV65/2007 dted 28 April 2008 |
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