Attorney General v. Shimizu Corporation

Case No.

Court

Date20 Mar 1997

Judge—

Case Document

100%

CACV000185B/1996

IN THE COURT OF APPEAL	1996, Nos. 185 & 186
	(Civil)

BETWEEN
	THE ATTORNEY GENERAL	Appellant (Respondent in Arbitration)
	AND
	SHIMIZU CORPORATION (formerly known as Shimizu Corporation Co. Ltd.)	Respondent (Claimant in Arbitration)

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

Coram: Hon Godfrey JA, Liu & Mayo, JJA in court

Dates of hearing: 18 and 20 March 1997

Date of judgment: 20 March 1997

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

JUDGMENT

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

Mayo JA:

1. Shimizu is seeking leave to appeal to the Privy Council against the judgment of this court dated 7 March 1997.

2. Mr Clayton contends that it is possible on this appeal to differentiate the position from the appeal in Civil Appeal Nos. 79, 80 and 81. He places reliance upon the decision in Coronation Electronic v. Tharoonds [1986] HKLR 1168 in support of this contention. I do not think that this is right. I accept the submission made by Mr Scott QC that the matter must be remitted back to the Arbitrator pursuant to s23(2)(b) of the Ordinance. It is therefore indistinguishable from the other appeal.

3. In accordance with the principles referred to by a differently constituted Court of Appeal in Civil Appeal Nos. 79, 80 and 81 the judgment in this appeal would appear to relate to an interlocutory decision. This being the case the court has to exercise a discretion as to whether or not leave should be granted pursuant to Rule 2(b) of the 1909 Privy Council Rules.

4. The question which has to be determined is whether the issues arising out of this appeal are ones of great and public importance or there is any other reason why leave should be granted.

5. On the face of it the question whether an Arbitrator has power to award compound interest under the existing legislation would appear to be one of such public importance as to justify the granting of leave.

6. However the Arbitration Ordinance recently enacted here which will shortly come into effect provides for the payment of compound interest in clear and unequivocal terms.

7. This being the case there is unlikely in the future to be uncertainty on this issue.

8. Having regard to the high threshold that has to be surmounted before we would be justified in granting leave I do not consider that leave should be granted in this case.

Liu JA:

9. I agree that leave should not be granted.

Godfrey JA:

10. I also agree.

11. I am not satisfied that this is a Rule 2(a) case or a Rule 2(b) case, and accordingly leave to appeal to the Privy Council will be refused.

12. I would only add this; that if we are wrong on the 2(a) point, there is nothing to prevent the intending appellant asking the Privy Council to give special leave on the ground that the case is indeed a 2(a) case, and that this court was wrong to hold otherwise.

(G.M. Godfrey)	(B. Liu)	(Simon Mayo)
Justice of Appeal	Justice of Appeal	Justice of Appeal

Representation:

Mr John Scott QC (M/S Denton Hall) for Appellant

Mr Peter Clayton (M/S Mallesons Stephen Jaques) for Respondent