CRYSTAL VIEW ENTERPRISE LTD. v. KAN YING KIT INGLEZ

IN THE COURT OF APPEAL

1996, No. 23

(Civil)

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J U D G M E N T

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Mayo JA:

1. The appellant was 27 days out of time in setting down this appeal. Accordingly an application for leave to extend the time for setting down the appeal was made before Ching JA who was sitting as a single Justice of Appeal.

2. Ching JA in his judgment gave full reasons for his refusal to extend the time. It is evident from these reasons that the main factor that weighed with him was the absence of any satisfactory explanation for the delay which occurred.

3. The reason given by the appellant for the delay was the difficulties which were being encountered in raising funds to cover the anticipated expenditure which would be incurred in prosecuting the appeal. These expenses would principally include their own legal costs and the costs of the respondent in the event that the appeal was unsuccessful.

4. Ching JA observed that the appellant had not been in any way tardy in lodging the notice of appeal and the reason given for this was that it was feared that the respondent might dispose of the flat the subject matter of the appeal if the notice of appeal was not lodged and registration thereof effected at the Land Registry. Ching JA understandably found it to be an unattractive proposition that the appellant should be prepared to in effect 'freeze' the respondent's position while at the same time procrastinating in prosecuting the appeal. With respect I would agree with this.

5. Notwithstanding this Ching JA was prepared to consider the merits of the appeal. The only ground which he considered to be in any way meritorious was the 4th Kround where it was contended that if a vendor has not accepted a purchaser's repudiatory breach of contract the purchaser may still tender the balance of the purchase price and require the vendor to complete the sale.

6. Mr Edward Chan QC for the appellant accepted that Ching JA had been exercising a judicial discretion when deciding whether or not to extend time. This being the case it was necessary for him to establish that the judge had been plainly wrong in the exercise of this discretion before we would be justified in interfering with the decision.

7. Mr Chan contended that there were two situations in the present appeal. He argued that the judge had been plainly wrong in holding that there had been no agreement between the parties to extend the date for the completion of the sale beyond 31 December 1991. He said that the judge had applied a subjective test to the evidence rather than an objective test.

8. He referred to lengthy passages from Keith J's judgment which dealt with what the judge thought must have been going through the minds of Mrs Tso and Mr Kan. He deduced from this that there might have been by implication an agreement between the parties that the date could be extended.

9. I do not agree that these considerations were such that it was plainly the case that there had been such an agreement and that in turn Ching JA had been mistaken in forming the view that an appeal based on this ground was likely to be successful.

10. This then leads to the one ground of appeal which Ching JA did consider to have some merit.

11. This was the question as to whether it would still be open to a purchaser to insist on the completion being concluded where it could be argued that the vendor had not accepted the purchaser's repudiatory breach of contract.

12. When submissions had been made to Ching JA the counsel appearing before him had been unaware of the case of Union Eagle Ltd. v. Golden Achievement Ltd. [1996] 1 HKC 349 where this had been one of the main issues ventilated in the litigation.

13. By a majority the Court of Appeal had held that a purchaser could not place reliance upon any such breach. However Godfrey JA in his dissenting judgment held the contrary view.

14. At the time of the application before Ching JA the parties were not aware of the fact that Union Eagle had been taken to the Privy Council.

15. When we heard this appeal on 6 December 1996 the Union Eagle appeal was well under way and there was every reason to believe that the outcome of the appeal would be known in the not distant future.

16. In accepting that the result of this appeal would almost certainly be determinative of the present appeal and adopting the principles laid down by Lord Greene MR in Re Berkeley (Decd.) [1945] 1 Ch 1 we adjourned the appeal pending receipt of the advice of the Privy Council in Union Eagle.

17. The Privy Council has now delivered its advice. It has upheld the decision of the majority of the Court of Appeal and rejected the reasoning of Godfrey JA.

18. This determination of Union Eagle by the Privy Council would appear to have resolved the one outstanding reason for granting the appellant here the indulgence of proceeding with an appeal out of time.

19. However at the adjourned hearing before us Mr Horace Wong revisited the matters earlier submitted by Mr Edward Chan concerning the finding of fact by Keith J to the effect that there was no agreement to postpone the completion. He did not say anything which persuades us that Ching JA was wrong to reach the conclusion he did on this.

20. This appeal should in my opinion accordingly be dismissed.

Mortimer JA:

21. There was an application before Ching JA for an extension of time for setting down this appeal under O59 r15. Order 59 r14(12) provides for an appeal against the decision of a single judge of the Court of Appeal by way of a fresh application to the full court. This is how this matter comes before this Court.

22. The first question we ask ourselves is what is the approach of this Court when there is a fresh application of this nature? It was said in Wren v Braunston Canal Services and Others, TLR November 23, 1990 that the English Court of Appeal would only interfere with the exercise of a single judge's discretion where he had misdirected himself in principle or had been plainly wrong. For my part, I think that is the correct approach.

23. Turning to Ching JA's decision, he decided rightly that the rules of court have to be obeyed unless some good reason is advanced for not obeying them. There is no real attempt to disturb his finding that there was no good reason advanced by the appellant for not obeying the rules. Absent a good reason the court will grant indulgence only if the innocent party will not be prejudiced and otherwise real injustice will result to the guilty party.

24. It was in these circumstances that he considered the merits of the appeal which was sought to be advanced against Keith J's decision. It is now said by Mr Wong who appears for the appellant that Ching JA was plainly wrong in his rejection of the third ground of appeal in that appeal.

25. Before turning to the third ground, it is to be noted that Mr Wong has not sought to pursue the first, second, or fourth grounds of appeal which, he tells us, are now unarguable. He seeks to further advance the third ground which was outlined before us at the original hearing.

26. He submits that the judge's finding of fact that there was no agreement between the parties to postpone the date of completion was flawed. Mr Wong has argued this matter briefly and forcefully. He has clearly put before us everything that can be said on the point. The point is simply this: that in deciding what was said in a conversation between the parties, he considered the motives and intentions of those involved and used the motives and intentions of each of them to reach a conclusion on the facts. It is submitted that as in the negotiations there were suggestions by both parties that the completion date should be postponed, he ought to have found that there was an agreement between them to that effect.

27. With the greatest respect, that does not follow at all. The judge considered the motives and intentions. They were proper matters for him to take into account in deciding what happened, what was said, and whether any concluded agreement was reached. Having seen the witnesses and having analysed the evidence with the greatest care, he concluded that there had been no agreement. That was a conclusion which was plainly open to him on the evidence. In spite of Mr Wong's attractive agreement, he fails to persuade me that there is anything in the point. It is a point which, if allowed to go to a hearing of the appeal, would almost certainly fail. In those circumstances it is not possible to find that Ching JA, in refusing the application before him, either erred in principle or was plainly wrong in his conclusions.

28. For those reasons, I agree that the appeal should be dismissed.

Nazareth V-P:

29. I agree with my Lords that for the reasons they have given, the appeal should be dismissed.

30. I would add that only one point has been pursued by Mr Wong before us today, and that, I, also am not persuaded has enough in it. In particular I can see nothing wrong with the judge having addressed the intentions of the two parties. Nor am I able to see evidence that points to an agreement postponing the date of completion.

31. In the circumstances the appeal made by way of application is dismissed.