THE LIQUIDATORS OF WING FAI CONSTRUCTION CO LTD (IN COMPULSORY LIQUIDATION) v. YIP KWONG ROBERT AND OTHERS

CACV 273/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 273 OF 2009

(ON APPEAL FROM HCCW NO. 735 OF 2002)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal in respect of an interlocutory decision made by this court given in writing on 30 April 2010.

2.  The decision of this court given on that date speaks for itself and I do not propose to go into the facts any further. Suffice it to say that many of the issues which are sought to be raised are suggestions that this court considered that it was not applying the current Rules of the High Court following the introduction of CJR.  The fact is that this court was.

3.  Nevertheless, the crucial point in this case seems to me to be this:  that the application to strike out the proceedings for want of prosecution was made on 19 August 2008.  That is more than seven months before the CJR amendments came into force.

4.  So whatever rules of conduct of an action might or might not apply after the change in the Rules, they simply do not apply to this application, which was launched seven months before the CJR amendments came into force.  Even if the submissions which were made, which I consider, incidentally, are not valid, apply to the present conduct of actions, I do not consider that this matter should go to the Court of Final Appeal because the basis upon which the rights of the parties are to be decided must be that of the law as it existed on 19 August 2008 and not on the basis of some subsequent change in the law.

5.  For those reasons, I would simply dismiss this application.

Hon Le Pichon JA:

6.  I agree.

Hon Stone J:

7.  I agree.