CIRCLE ANGLE LTD v. ORCHARD ENTERPRISE (HONG KONG) LTD

DCCJ 1252/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1252 OF 2011

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D E C I S I O N

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1.  For this conveyancing dispute, the defendant (“OEL”) applied (by summons dated 17 August 2011) for summary determination under O.14A or alternatively summary judgment of the counterclaim under O.14 of the Rules of the District Court. It also asked for the striking out of the defendant (“CAL”)’s pleading and hence dismissal of the action under O.18, r.19 of the Rules. Upon that, CAL applied (by summons dated 31 August 2011) to amend its pleading and asked the court to dismiss OEL’s summons.

2.  On 6 February 2012, this court handed down the written judgment (“the Judgment”) whereby I dismissed CAL’s application to amend its pleading; and entered summary judgment in respect of OEL’s counterclaim.  The claim was dismissed.  I made a nisi order that OEL shall have the costs of this action and the applications. Costs shall be taxed, if not agreed, with certificate for counsel.

3.  By summons dated 16 February 2012, CAL applies for leave to appeal.  Unless the intended appeal has a reasonable prospect of success or should in the interest of justice should be heard by the appellate court, leave to appeal shall not be granted: section 63A(2) of the District Court Ordinance.

4.  All the major arguments in the hearing are canvassed in the draft notice of appeal. Of them, there are the issues of waiver and notice to complete, which formed part of the amendments that CAL applied to introduce.  In other words, CAL is saying that the amendments are not unsustainable (as I found); and, if allowed, afford arguable defence to the counterclaim.

5.  I do not intend to repeat the discussion in this respect in the Judgment (see §§38-42; 51-63).  The proposed appeal in this respect, in so many words in the draft notice, essentially raises one question, namely, whether by the consideration of the draft cancellation agreement (which eventually failed) and the withholding of further steps to complete on and after the completion date, the position in the circumstances of this case (I emphasize) was still fluid for the benefit of both parties so that OEL was not entitled to treat CAL to be in breach without giving notice to complete and making the time for the same of the essence.

6.  The test for summary determination of the dispute is stringent and even more so for the striking out of pleading and dismissal of action.  Bearing that in mind, I am not prepared to rule out a reasonable prospect that the appellate court could take a view of this question and come to a conclusion different from what this court explained in the Judgment.

7.  I do not take the same view of the other proposed grounds of appeal.  Section 63A(1)(a) of the District Court Ordinance confers on the court discretion to grant leave to appeal in respect of a particular issue arising out of the Judgment.  I therefore give leave to appeal in respect of the question under paragraph 6 above, but not the others proposed in the draft notice of appeal.

8.  Costs of this application shall be in the cause of the appeal with certificate for counsel.