Grant Thornton International Ltd and Others v. Tang Chung Wah (also known as Alan Tang) and Another

CACV 193/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 193 OF 2013

(ON APPEAL FROM HCCL NO 17 OF 2012)

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Before : Hon Cheung JA, Hon Kwan JA and Hon Poon J in Court

Dates of Written Submissions : 31 July 2014, 12 September 2014 and 19 September 2014

Date of Judgment : 7 October 2014

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J U D G M E N T

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Hon Poon J (giving the Judgment of the Court) :

A. INTRODUCTION

1.On 14 November 2012, the plaintiffs obtained a costs order from the High Court of England against the defendants, who are the 1^st plaintiff’s former partners.  The plaintiffs then sought summary judgment against the defendants to enforce the costs order, which was allowed by Ng J on 23 July 2013.  Ng J further ordered that the plaintiff’s summons for striking out the defendant’s counterclaim be heard together with the defendants’ striking out application on 29 August 2013.  The defendants then appealed to this Court.

2.By a judgment dated 4 June 2014, we dismissed the defendants’ appeal with costs.  The defendants now apply for leave to appeal to the Court of Final Appeal on the ground that the questions involved in the intended appeal are which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.  Those questions are :

(1) (a) How does a foreign judgment prevent subsequent re-litigation, in a local forum, of an issue which could have been raised in foreign proceedings by the same parties?

(b) How do all the res-judicata pleas activated by a domestic judgment apply in precisely the same way, if at all, to a foreign judgment?

(2) Alternatively, in the absence of unjust harassment or oppression of the opponent and applying a broad merits based approach, should the abuse of process doctrine not apply to an issue that was not raised in the foreign context as long as the raising of the issue in subsequent proceedings does not involve a collateral attack on the earlier decision?

(3) Absent any real prejudice, must every case be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication?

(4) (a) Whenever a challenge of a solicitor’s authority to act for a party is being raised, does the burden of proof rest on the solicitor asserting such authority to prove his due authorization or does it fall upon the challenger to prove the solicitor is not duly authorized?

(b) And does such challenge stand notwithstanding the absence of cogent and compelling evidence in support as long as the challenger has reasonable grounds to believe that his opponent’s solicitor has not been duly authorized?

3.The defendants also rely on the “or otherwise” ground.

B. THE “GENERAL OR PUBLIC IMPORTANCE” GROUND

4.Questions (1) to (3) concern the Entitlement Issue.

5.In our view, the relevant legal principles on res judicata are well established.  The application of the principles is case-specific.  In other words, it is a fact-sensitive exercise.  Here, in disposing of the Entitlement issue, we just applied the principles to the specific facts before us.  The fact that counsel for the defendants was not fully prepared to argue the extended res judicata issue before us is neither here nor there.  We fail to see how it would give rise to any question of general or public importance as contended.  Besides, we do not think it is right for this Court to grant leave to appeal on questions that were not argued before us.

6.Question (4) concerns the Authority Issue.

7.We similarly disposed of the Authority Issue by applying the well established res judicata principles.  Likewise, we fail to see how it would give rise to any question of general or public importance as contended.

8.The written submissions of Mr Cheung for the defendants on this issue are basically a repetition of his arguments advanced before us at the substantive hearing, which we had rejected.  They do not take the defendants’ application on the “general or public importance ground” any further.

9.The application based on the “general or public importance” ground fails.

C. THE “OR OTHERWISE” GROUND

10.The defendants have not raised any argument why their application falls within the “or otherwise” ground.  It must fail, too.

D. CONCLUSION

11.We dismiss the defendants’ application for leave to appeal to the Court of Final Appeal.  We further make an order nisi that the defendants do pay the plaintiffs costs, to be taxed if not agreed.

Mr Denis Brock, of Messrs King & Wood Mallesons, for the 1^st ‑9^th plaintiffs

Mr Jeremy Cheung, instructed by Messrs Joseph Li & Co., for the 1^st and 2^nd defendants