Pacific Electric Wire & Cable Co Ltd v. Harmutty Ltd and Others

CACV 208/2008, CACV 210/2008, CACV 211/2008, CACV 212/2008,
CACV 351/2008 AND CACV 352/2008

CACV 208/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2008

(ON APPEAL FROM HCA NO. 2763 OF 2004)

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BETWEEN

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AND

CACV 210/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 210 OF 2008

(ON APPEAL FROM HCA NO. 2203 OF 2004)

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BETWEEN

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AND

CACV 211/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2008

(ON APPEAL FROM HCA NO. 2746 OF 2004)

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BETWEEN

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AND

CACV 212/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2008

(ON APPEAL FROM HCA NO. 2763 OF 2004)

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BETWEEN

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AND

CACV 351/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 351 OF 2008

(ON APPEAL FROM HCA NO. 2746 OF 2004)

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BETWEEN

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AND

CACV 352/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 352 OF 2008

(ON APPEAL FROM HCA NO. 2763 OF 2004)

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BETWEEN

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(Heard together)

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 5 June 2009

Date of Judgment: 5 June 2009

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J U D G M E N T

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Hon Rogers VP:

1.In this case, this Court has made clear that, quite apart from anything else, it does not consider that this matter was fit for Order 14.  So if one considers the criteria for granting leave in interlocutory appeals, I regret that whether or not there is a question of great general or public importance as regards whether the exact wording of Order 14 rule 1(2) and the exclusion of actions which include a claim by the Plaintiff based on an allegation of fraud and whether that means that an Order 14 application can be made, notwithstanding that the underlying root cause of the action as pleaded is based on fraud, or whether, as the Plaintiff says, it can seek ancillary relief, even though it says that it does not rely on the allegation of fraud, that is a matter in respect of which I would not give leave to appeal.

2.When the matter is considered in the round, even if that is taken to the Court of Final Appeal, there remains the matter as to whether this action was fit for an Order 14 application.  This Court was clearly of the view that it was not.

3.In that case, it seems to me that it would be wholly academic to give leave and I, for my part, would not be prepared to give leave.

Hon Le Pichon JA:

4.I agree.

Mr Anthony Neoh SC and Ms Barbara Wong, instructed by Messrs W K To & Co., for the Plaintiff/Applicant in all appeals (“PEWC”)

Mr Clifford Smith SC and Ms Rachel Lam, instructed by Messrs Tanner De Witt, for the 18th and 19th Defendants in CACV 208/2008/Respondents (“Blinco & Patagonia”)

Mr Simon Westbrook SC and Mr Jeevan Hingorani, instructed by Messrs Gall & Lane, for the 1st, 3rd, 4th and 7th Defendants in CACV 210/2008; the 1st, 2nd, 3rd and 8th Defendants in CACV 211/2008; and the 1st, 2nd, 3rd and 17th Defendants in CACV 212/2008/Respondents (“the Corporate Defendants”)

Mr Robert Whitehead SC and Mr Steven Kwan, instructed by Messrs Haldanes, for the 4th Defendant in CACV 208, 211, 212, 351 and 352/2008; and the 8th Defendant in CACV 210/2008/Intervener (“Mr Hu”)

Mr Edward Alder, instructed by Messrs Kennedys, for the Joint and Several Receivers of the 2nd and 3rd Defendants in CACV 208/2008; the 5th Defendant in CACV 210/2008; and the 3rd Defendant in CACV 211/2008