Shahdan Ltd v. Rich Life International Ltd

DCCJ 5614/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5614 OF 2008

------------------------

BETWEEN

------------------------

Coram: Deputy District Judge Raymond Tsui in Chambers (open to the public)

Date of Hearing:   30^th July 2009

Date of Decision:  30^th July 2009

Date of Handing Down Reasons for Decision:   12^th August 2009

---------------------------------------

REASONS FOR DECISION

---------------------------------------

1.This is an application of Rich Life International Limited (“Rich Life”), the Plaintiff by Counterclaim, for leave to appeal to the Court of Appeal against my order dated 8^th July 2009 whereby the appeal of Rich Life against the decision of Registrar Poon was dismissed. Before Registrar Poon was an application taken out by Henderson Real Estate Agency Limited (“Henderson”), the 1^st Defendant by Counterclaim, to strike out the Counterclaim of Rich Life. The application was allowed by Registrar Poon.

2.I have set out the facts of the case in my judgement dated 8^th July 2009. I do not seek to repeat those facts. It would be sufficient for me to say that the Counterclaim of Rich Life is based on alleged misrepresentations made by Ms Sylvia Chung Wai Man, the 3^rd Defendant by Counterclaim who was at all material times an employee of Henderson. It is the case of Rich Life that it had entered into certain tenancy and licence agreements with Henderson. Shahdan Limited (“Shahdan”), who is the 2^nd Defendant by Counterclaim, was the successor in title to Henderson.

3.In an application by Shahdan for summary judgment in the Original Action against Rich Life, the allegation of misrepresentation was raised by Rich Life as a defence but was dismissed. Leave to defend was granted to Rich Life on other ground. Henderson’s application before Registrar Poon relied on the ground that the Counterclaim was an abuse of process or was frivolous or vexatious. The basis of the submission of Henderson was that the principle of resjudicator, both in its narrow and wide sense (i.e. the issue should have been raised in the earlier proceedings), applied so that Rich Life was estopped from raising the same allegation of misrepresentation.

4.As mentioned earlier, the application to strike out the Counterclaimof Rich Life was allowed by Registrar Poon. The appeal against the decision of Registrar Poon was dismissed by my judgment dated 8^thJuly 2009 which is the subject matter of the present application.

The Law

5.The applicable principles are well settled. (SeeMa Bik Yung v Ko Chuen HCMP No. 4303/1999; Bowardley Enterprises Limited v Millennium Group Limited DCCJ No. 3039/2004; Wu Yi Development Company Limited v Big Island Construction (HK) Limited DCCJ No. 5174/2005) Put simply, the court will only refuse leave if there is no realistic prospect of success. A draft Notice of Appeal is exhibited to the affirmation of Ng Wai Chun, solicitor for Rich Life, filed on 22^ndJuly 2009. Various Grounds have been put forward. In gist, the main ground is concerned about how the principle of resjudicator should be applied, with particular reference to the situation where the principle is sought to be applied to a previous interlocutory application. I have read the draft Notice of Appeal. I have come to the conclusion that I could not say that there is no real prospect of success.

6.I bear in mind the Court of Appealhad said in King Royal Limited v Lam Kwan Yuk (HCMP 448/2005, 18^thApril 2005) that it was not for this court to restrict the grounds which could be argued if it was considered appropriate to grant leave to appeal.

7.Henderson adopted a neutral stance in this application.

8.Bearing all the above in mind, I grant leave to Rich Life to appeal generally.

9.I also make an order that costs of this application be in the cause of the appeal with certificate for counsel.

Representation:

Mr.Thomas Lai instructed by Messrs S. K. Wong & Co.for the Plaintiff (by counterclaim).

Mr. Chan Chi Fai of Messrs Pang & Associates for the 1^stDefendant (by counterclaim).