PENTA INVESTMENT ADVISERS LTD v. ALLIED WELI DEVELOPMENT LTD (formerly known as HENNABUN CAPITAL GROUP LTD)

CACV 222/2014
AND
CACV 35/2015
(HEARD TOGETHER)

CIVIL APPEAL NOS. 222 OF 2014 AND 35 OF 2015

(ON APPEAL FROM HCA NO. 1656 OF 2012)

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D E C I S I O N
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Hon Cheung JA (giving Decision of the Court) :

1.  The defendant applies for leave to appeal to the Court of Final Appeal against our judgment of 23 July 2015.

2.  Both limbs of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are relied upon.

3.  In respect of the great general or public importance limb, the following two questions are formulated :

1) Where despite a repudiatory breach of contract, which in the present case was the defendant’s refusal to issue an instruction for the disposal of the Disposal Shares, the plaintiff was still able to and did procure a disposal of the Disposal Shares without the need for any prior instruction from the defendant, can it be said that such a breach of contract caused any loss to the plaintiff?

2) On the true construction of a Deed where the plaintiff was only entitled to claim a Guarantee Amount if and to the extent that it had suffered some economic loss as a result of itself acquiring and still holding some Disposal Shares as at a certain date, if the plaintiff had not acquired any Shares, can it be said that he had suffered any loss?

4.  These two questions purportedly arise from the two grounds of appeal pertaining to the judgment on damages which we rejected in paragraphs 6.6 to 6.13 of our judgment.  These two questions are plainly fact specific, unique to the dispute in question and the great general or public importance point is simply not engaged.

5.  The defendant also relies on the ‘or otherwise’ limb.  The defendant simply has not satisfied the high threshold for obtaining leave under this limb.  In any event, the practice of this Court is to leave this matter to be considered by the Court of Final Appeal itself.

6.  Accordingly the application is refused.

7.  We will order costs of the application be to the plaintiff on an indemnity basis to be taxed if not agreed.  The reason for ordering indemnity costs is because the defendant insisted on having an oral hearing despite the plaintiff agreeing to the Court’s suggestion to have the matter dealt with on paper.  At the hearing the defendant did not advance any oral arguments and relied on what had already been contained in its written submissions.  This made the holding of an oral hearing totally meaningless and a complete waste of time and costs.