Lau Suk Ching Peggy v. Ma Hing Lam and Others

cacv 360/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 360 of 2006

(on appeal from HCA NO. 2408 of 2004)

BETWEEN

Before: Hon Rogers VP, Kwan and Wright JJ in Court

Date of Hearing: 29 April 2008

Date of Judgment: 29 April 2008

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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.  The application is made under both section 22(1)(a) and 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2.The application under the first head, namely, section 22(1)(a), in my view, falls at the first hurdle.  Shortly before the hearing of this appeal, the plaintiff's claim was limited to a claim for damages in lieu of specific performance.  As the authorities produced by Mr Li on behalf of the defendants have shown, unliquidated damages does not come within the provisions of section 22(1)(a) and therefore the application under that section must fail. 

3.I say no more about any other arguments which have been raised in relation to the claim for specific performance itself since it is advisable merely to deal with the points in issue.

4.Under section 22(1)(b), it is said that there is a question of great general or public importance, namely, that “in the absence of an express timetable as provided for in the option to purchase where the deadline for completion of the purchase upon the exercise of that option should be the expiry of a reasonable period from the date of the exercise of that option, or the last date upon which that option can be exercised.”  This question appears to be primarily a question of construction of the particular contract in question, therefore, it does not fall within the ambit of something which is of great general or public importance and I do not see that this question would arise on any other occasions.

5.In any event, part of the argument this morning seems to me to be an argument which, even if successful, would not assist the plaintiff in this case because it turns on the question of how long any notice to exercise an option should be given and, if anything, this would tell against the plaintiff in this case.  For these reasons, I would dismiss this application. 

Hon Kwan J:

6.I agree.

Hon Wright J:

7.I too agree.

Mr Albert Yau, instructed by Messrs Tso Au Yim & Yeung, for the Plaintiff/Applicant

Mr C Y Li, instructed by Messrs D S Cheung & Co., for the 1st to 3rd Defendants/Respondents