GREATWORTH INDUSTRIAL LTD v. CHEVALIER (CONSTRUCTION) CO LTD

FAMV No. 43 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2006 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 36 OF 2006)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  Invoking s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap.484, Greatworth Industrial Ltd contends that there are two bases on which it should be granted leave to appeal to the Court of Final Appeal.  The first is that the proposed appeal would involve a number of questions which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.  And the second is that leave to appeal should be granted on the “or otherwise” limb.  As to this Greatworth relies on a number of matters including its contention that it can be said as a matter of utmost probability, or even of virtual certainty, that the damages ultimately awarded would be in excess of $1,000,000 if the appeal were to succeed.

2.  The questions said on Greatworth’s behalf to be of great general or public importance all go to its complaint against the award to it of only nominal damages in respect of the 635 gates left to be supplied and installed at the time when it accepted Chevalier (Construction) Co. Ltd’s repudiation of the contract.  They are all directed against the view taken by the courts below that Greatworth did not have the capacity to supply and install those 635 gates.  When these questions are examined, it emerges that they all go essentially to fact-specific matters of pleading and evidence.  They are not questions of great general or public importance, and do not provide any foundation for granting leave to appeal to the Court of Final Appeal.  As to the second basis, what is asserted thereunder as to amount may be true as far as it goes.  But the grant of leave to appeal on such basis is still a matter of discretion.  As to that, Greatworth’s prospect of making out a complaint of injustice to it are, in all the circumstances, insufficient to warrant leave to appeal to the Court of Final Appeal.  Accordingly, despite the arguments ably presented by Ms Teresa Cheng SC on Greatworth’s behalf, such leave must be refused.

[Costs were not opposed and were awarded to Chevalier.]