LIN MAN YUAN v. KIN MING HOLDINGS INTERNATIONAL LTD

HCMP 649/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 649 OF 2010

(ON AN INTENDED APPEAL FROM HCA 216 OF 2008)

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving Decision of the Court) :

1. The defendant failed in its striking out application of the plaintiff’s statement of claim and dismissal of the plaintiff’s action before Deputy High Court Judge Louis Chan.  The defendant intended to appeal.  Since the judgment was interlocutory in nature, leave to appeal was required.  It failed in its application to obtain leave to appeal from the Judge.  It now renews the leave application before this Court by way of written application.  The plaintiff has lodged her written objection to the application.

2. We will refuse to grant leave as the defendant has not shown that it has a reasonable prospect of success on appeal.  Ultimately the Judge exercised a discretionary remedy.  We agree that the case should go for trial and we agree with the Judge’s view that the following issues merit consideration at a full hearing : the binding effect of a default judgment; the ambit and construction of clauses 7.1 of the agreement; the applicability of the oral terms of the agreement and the fiduciary duty of the defendant.

3. We further order under Order 59 Rule 2A(8) of the Rules of the High Court that no oral hearing will be considered.

4. The plaintiff is entitled to the costs of the application.