Read the full judgment text of CACV 000016/1981 on BabelCite. This Court of Appeal judgment was delivered on 26 July 1982 before Silke J.A., Garcia and Power JJ..
Civil procedure – striking out – principles applicable – plain and obvious cases only – disputed facts taken in favour of plaintiff – Court of Appeal (Silke J.A., Garcia and Power JJ.) – Civil law – agency – undisclosed principal – intervention by principal terminating agent's action – what constitutes intervention – civil procedure – lis pendens – priority between competing purchasers of property – Statute of Frauds – section 5 of the Law Amendment and Reform (Consolidation) Ordinance Cap 23 – whether memorandum point is a matter of law or evidence – contract – construction of written authorisation to sell – whether document is an offer for sale or merely an authority to sell – trade custom – 'order paper' – requirements for importation of custom into written contract – construction of pleadings – whether pleadings disclose arguable cause of action – Ha, a broker, obtained a signed document (Document 40) from Tsai authorising Ha to sell ten houses for $45 million with a 1% commission, terms effective until 23 January 1979; Ha purported to accept by the Tsang and Chau letter on behalf of himself and, alternatively, Likesoon Company Limited as undisclosed principal – Ha commenced action 581 for specific performance, damages and $450,000 commission and registered a lis pendens – Likesoon subsequently issued action 4080 joining Ha as fifth defendant and asserting the contract as its own – The Court held that action 581 disclosed arguable issues on contract and trade custom and should not be struck out on that ground; that the memorandum point under section 5 of Cap 23 is a matter of evidence and should go to trial; and that action 4080 should not be struck out as triable issues remained – However, the Court upheld the dismissal of 581 on the intervention point, holding that Likesoon's issuance of its own proceedings, asserting the contract as its own and joining Ha as a defendant, constituted a decisive intervention revoking Ha's right of suit and removing the apparent privity of contract between Ha and the third parties, leaving Ha only with a claim for his commission in separate proceedings – Ha's appeal dismissed; defendants' appeals against refusal to strike out 4080 dismissed; costs follow the event.
Legal issues: Whether Ha's action 581 discloses an arguable case of contract and should not be struck out · Whether Likesoon's intervention by issuing its own action terminated Ha's right to continue his action 581 · Whether Likesoon's action 4080 should be struck out for disclosing no valid cause of action · Whether the no sufficient memorandum point under section 5 of CAP 23 should be determined on a striking out application
Outcome: Ha's appeal against dismissal of 581 and the order vacating the lis pendens dismissed; defendants' appeals against refusal to strike out 4080 dismissed; Neptune and Lucinda's contentions in their Respondent's notice dismissed.