Moulin Global Eyecare Holdings Ltd (in Liquidation) v. Olivia Lee Sin Mei

CACV 155/2012 and CACV 161/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 155 AND 161 OF 2012

(ON APPEAL FROM HCA NO. 167 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Kwan JA (giving the Judgment of the Court):

1.This is the plaintiff’s application for leave to appeal to the Court of Final Appeal against our judgment of 7 December 2012 in two appeals. In CACV 161/2012, we dismissed the plaintiff’s appeal against the decision of Barma J on 27 June 2012 in which he struck out the “Convertible Notes Claim” and the “Share Repurchases Claim” on limitation grounds and on the ground that the plaintiff had suffered no loss in respect of the Convertible Notes Claim. In CACV 155/2012, we allowed the defendant’s appeal against the decision of the judge on 3 July 2012 and set aside his order granting leave to further amend the statement of claim to plead an alternative claim for damages quantified by reference to the plaintiff’s increased net deficiency.

2.The plaintiff accepts that a decision to strike out all or part of a claim is interlocutory and not final for the purpose of seeking leave to appeal to the Court of Final Appeal.  Interlocutory appeals to the Court of Final Appeal on procedural issues should be “rare and exceptional” and leave is granted only if the appeal genuinely raises a question of law of great general or public importance, the result of the appeal would indeed turn on how that question is answered, and such result is likely to make a significant contribution to the just disposal of the litigation (CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629 at para 1).

3.Six questions to be raised in the proposed appeal are set out in the two identical notices of motion.  It is contended that these questions are of great general or public importance in relation to the law of limitation, director’s duties, insolvency and post-CJR procedure.  The plaintiff also relies on the “or otherwise” limb, on the basis that the judgment appealed from has wrongly deprived it of the ability to pursue claims in excess of $1.2 billion, to the detriment of its creditors.

4.The six questions formulated in the notices of motion, quite apart from being prolix and verbose, are somewhat convoluted and some are premised on assumptions of a contentious nature.  Mr Burns, SC re-formulated the first four questions in his reply submission.  We do not think the re-formulated questions change their characterisation.

5.We have considered carefully the two written submissions by Mr Burns, running to 30 pages in all, and his oral submissions this morning.  It does not appear to us this is an appropriate case to grant leave, whether on the ground of great general or public importance, or the “or otherwise” ground.

6.With the exception of question 1 in the notice of motion, the questions raised by Mr Burns are fact and context specific, based on the facts and pleadings in this particular case, and cannot be regarded as genuine questions of great general or public importance, particularly so in respect of questions 5 and 6, which are concerned with the discretion of the court to grant an extension of time to object to the amendment of pleadings.

7.We are also not persuaded that questions 1, 5 and 6 raised in the proposed appeal are reasonably arguable.  As Mr Burns’ arguments in this application are largely a repetition of his arguments before us in the appeal, which we have dealt with fully in our judgment, we do not think it necessary or appropriate to give a detailed judgment on this occasion.

8.Further, in respect of question 4 in the notice of motion, which relates to the appropriate pleading to be used as a “comparator”, the result of the appeal is not likely to turn on how this question is answered.

9.We do not think there are exceptional circumstances here for the “or otherwise” ground to be engaged.

10.For the above reasons, we decline to exercise our discretion to grant leave to appeal.  The notices of motion are dismissed with costs to the defendant.

Mr Ashley Burns SC, instructed by Lipman Karas,and Mr Jason Karas of Lipman Karas, for the Plaintiff (Appellant in CACV 161/2012 and Respondent in CACV 155/2012)

Mr Paul Shieh SC and Ms Janet Ho, instructed by Carpio, Mak & To, for the Defendant (Appellant in CACV 155/2012 & Respondent in CACV 161/2012)