Read the full judgment text of CACV 282/2012 on BabelCite. This Court of Appeal judgment was delivered on 14 August 2015 before Lam VP, Lunn VP, Barma JA.
Civil appeal – leave to appeal to Court of Final Appeal – application of section 22 of the Hong Kong Court of Final Appeal Ordinance (Cap 484) – whether claim for conversion with quantified damages is a claim for liquidated damages or to particular property for 'as of right' purposes – whether questions of great general or public importance warranting leave – misdelivery of diamonds by carrier – pledgee plaintiff – rule in Kum v Wah Tat Bank Ltd [1971] 1 Lloyd's Rep 439 – Official Assignee of Madras v Mercantile Bank of India Ltd [1935] AC 53 – Re Far East Structural Steelwork Engineering Ltd [2010] 1 HKLRD 156 – plaintiff claimed conversion of three shipments of diamonds where the 3rd Defendant (carrier) had no knowledge of the alleged pledge and delivered the goods without production of the air waybills – Court of Appeal (Lam VP, Lunn VP and Barma JA) allowed the plaintiff's appeal on 17 July 2014 – whether leave to appeal to CFA as of right – held: no, the claim was for unliquidated damages notwithstanding quantification, following Carewins Development (China) Ltd v Bright Fortune Shipping Ltd and Chinachem Charitable Foundation Ltd v Chan Chun Chuen – held: leave also refused on the 'questions of great general or public importance' limb and the 'otherwise' limb, following The Law Society of Hong Kong v A Solicitor, because the points had not been argued below – costs – RHC Order 22 rule 24 – sanctioned offer of US$850,000 made on 8 July 2011 – judgment award of US$852,339 – whether the court should make the orders in rules 24(2) and (3) – held: yes, it would not be unjust to do so; the small discount of approximately 0.27% did not render the offer 'merely tactical' in a misdelivery case, following Kai Min Fashion (HK) Ltd v Fond Express Logistics Ltd and Wharton v Bancroft – trial costs on indemnity basis from 6 August 2011 – whether sanctioned offer below carries over to appeal – held: no, following Ryder Industries Ltd v Chan Shui Woo, but the offer may be considered in the discretion as to appeal costs – appeal costs remain on party and party basis – enhanced interest on damages and on trial costs at 4% over prime rate and half of 4% over prime rate respectively, following Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd – Shih Pik Nog v G2000 (Apparel) Limited distinguished on the need for evidence of payment of costs – motion for leave dismissed with costs, with certificate for two counsel – costs of variation application to the 3rd Defendant.
Legal issues: Whether the 3rd Defendant is entitled to leave to appeal to the Court of Final Appeal as of right · Whether leave to appeal to the CFA should be granted on questions of great general or public importance or otherwise · Whether Order 22 rule 24 requires indemnity costs and enhanced interest on the trial costs · Whether the sanctioned offer below can carry over to the appeal for costs purposes · Whether enhanced interest should be awarded on the damages awarded to the plaintiff
Outcome: Application for leave to appeal to the Court of Final Appeal dismissed. Costs order nisi varied to award indemnity costs of the trial from 6 August 2011, party and party costs of the appeal, and enhanced interest at 4% over prime rate on damages and at half of 4% over prime rate on trial costs. Costs of the variation application awarded to the plaintiff.
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