Pacific Electric Wire & Cable Co Ltd v. Texan Management Ltd and Others
Read the full judgment text of CACV 369/2006, CACV 370/2006, CACV 371/2006 on BabelCite. This Court of Appeal judgment was delivered on 14 November 2007 before Rogers VP, Le Pichon JA.
Civil procedure – leave to appeal to Court of Final Appeal – application under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 – whether proposed grounds meet threshold of great general or public importance – consolidated civil appeals concerning properties and parallel proceedings in Taiwan – three related High Court actions (HCA Nos. 2203/2004, 2746/2004, 2763/2004) – service out of jurisdiction on defendants in Taiwan – first ground: whether principles for re-grant of relief upon discharge of ex parte order for material non-disclosure in Mareva and Anton Piller cases apply to re-grant of leave to serve out of jurisdiction – held principles well established by long-standing authority including The King v The General Commissioners ex parte Princess Edmund de Polignac [1917] 1 KB 486 – no merit – second ground: whether plaintiff's undertaking not to proceed with parallel Taiwan proceedings 'while the Hong Kong proceedings are on foot' is wrong in principle or amounts to a proper election – held undertaking sufficient to avoid the mischief of harassing defendants in two jurisdictions, citing Australian Commercial Research and Development Limited v ANZ McCaughan Merchant Bank Limited [1989] 3 All ER 65 and Dicey and Morris – no merit – third ground: whether limited circumstances for Court of Appeal interference with forum conveniens discretion were present – held proceedings necessarily had to be brought in Hong Kong – no merit – fourth ground: whether plaintiff pleaded sufficiently an issue to be tried against 21st Defendant in CACV 371/2006 – held serious issue to be tried existed and the question is case-specific, not of great general or public importance – no merit – fifth ground: whether service of writs on defendants in Taiwan by way of service was contrary to Taiwan law and therefore invalid under Order 11, Rule 5(2) of the Rules of the High Court – held any irregularity could be cured by re-service and the point was not of such importance as to warrant CFA review – no merit – Court of Appeal declined leave on all grounds – Appeal to Court of Final Appeal subsequently dismissed per FAMV 71/2007 dated 13 March 2008.
Legal issues: Leave to appeal to the Court of Final Appeal on multiple grounds
Outcome: Leave to appeal to the Court of Final Appeal refused on all grounds. The subsequent appeal to the Court of Final Appeal was also dismissed (FAMV 71/2007 dated 13 March 2008).
Cites 2 cases
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cacv 369/2006, CACV 370/2006 AND CACV 371/2006 CACV 369/2006 in the high court of the hong kong special administrative region court of appeal civil appeal no. 369 of 2006 (on appeal from HCA NO. 2203 of 2004) ______________________ BETWEEN
______________________ CACV 370/2006 in the high court of the hong kong special administrative region court of appeal civil appeal no. 370 of 2006 (on appeal from HCA NO. 2746 of 2004) ______________________ BETWEEN
______________________ CACV 371/2006 in the high court of the hong kong special administrative region court of appeal civil appeal no. 371 of 2006 (on appeal from HCA NO. 2763 of 2004) ______________________ BETWEEN
______________________ Before : Hon Rogers VP and Le Pichon JA in Court Date of Hearing : 14 November 2007 Date of Judgment : 14 November 2007 ______________________ J U D G M E N T ______________________ Hon Rogers VP: 1.This aspect of the application is an application for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. 2.The first ground is:
3.In my view, this court has followed authority which goes way back, more than 100 years, and was very clearly set out in the The King v The General Commissioners for the purposes of the Income Tax Acts for the District of Kensington ex parte Princess Edmund de Polignac [1917] 1 KB 486, which was nearly a hundred years ago. 4.I see no merit in this and would not give leave to appeal. 5.The next question is:
6.On this aspect, reliance is placed upon a statement in Dicey and Morris and upon a decision in the case of Australian Commercial Research and Development Limited v ANZ McCaughan Merchant Bank Limited [1989] 3 All ER 65 in which the passage is cited. 7.Although the statement in Dicey and Morris indicates that the two actions cannot be on foot, it seems to me that the objection to having two actions is harassing defendants in two jurisdictions in respect of the same matter. That is avoided, in this instance, by the undertaking and in my view that form of undertaking is sufficient to avoid the mischief which the rule is designed to obviate. There may, indeed, well be reasons why proceedings should be allowed at least to be commenced and then stayed in a foreign jurisdiction. There may be similar provisions with regard to time and the period within which actions can be commenced, and so forth, and, therefore, to preserve rights out of an abundance of caution it may be necessary that those proceedings are commenced but stayed. 8.In the present instance, the two actions are firmly under the control of the Hong Kong court and there is nothing that the plaintiffs can do to breach that and at the same empower them to continue with the present proceedings because the defendants, if there were a breach, could come back to the Hong Kong court straight away and apply for the appropriate orders on the basis that the Plaintiffs were in breach of their undertaking to the court. 9.On that ground, too, I would not give leave to appeal. 10.The next ground is:
11.In this case, I have to say that my view of these proceedings is that they were entirely necessary to be brought into Hong Kong because I could not see how the Plaintiffs could possibly get the relief to which they say they are entitled, on the facts which they say exist, without bringing the proceedings in Hong Kong, and so, unfortunately, I see absolutely no merit in that point at all. 12.The next question is:
13.Again, really, the same thing applies. I consider that there is certainly a serious issue to be tried in respect of the 21st Defendant and I cannot see how it can be said otherwise. In any event, when one considers whether matters are of great general or public importance, this, as with the previous issue, is a matter of specific relevance to this case and is not, it seems to me, a matter of great general or public importance. 14.Finally, the question is:
15.This court took the view that the service, if it had been effected, of Taiwan proceedings in Taiwan may or may not have been void, but that did not affect the Rules of the Hong Kong court as to whether or not the service would be recognised as good service. 16.In any event, on this issue, I see absolutely no point in this matter going to the Court of Final Appeal, interesting though it may be as a point of discussion. It would delay these proceedings by another year before the matter got to the Court of Final Appeal and the upshot of it would simply be that the Plaintiff would have to re-serve again. I see absolutely no point, other than delaying the action and raising more costs, in sending such a matter to the Court of Final Appeal. 17.In all these matters, if the Court of Final Appeal wished to hear the matter, that is a matter for them. But as far as this court is concerned, I do not consider that this court should give leave on any of these grounds. Hon Le Pichon JA: 18.I agree.
Mr Anthony Neoh SC and Ms Barbara Wong, instructed by Messrs W K To & Co., for the Plaintiff/Respondent Mr Robert Whitehead SC and Mr Steven Kwan, instructed by Messrs Coudert Brothers, for the 8th Defendant in CACV 369/2006, the 4th Defendant in CACV 370/2006, and the 4th and 21st Defendants in CACV 371/2006/Applicants Appeal to Court of Final Appeal dismissed: see FAMV71/2007 dated 13 March 2008 |