NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

CACV 58/2018 & CACV 59/2018

(Heard Together)

[2018] HKCA 430

CACV 58/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2018

(ON APPEAL FROM HCA NO 3446 OF 2016)

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AND

CACV 59/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2018

(ON APPEAL FROM HCA NO 44 OF 2017)

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(Heard together)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  By a judgment handed down on 17 May 2018, we allowed Octo’s appeals, setting aside the summary judgment entered by the Judge on NTT’s claims in the 2016 Action; the summary judgment entered by the Judge on NTT’s counterclaim in the 2017 Action; and the Judge’s order of striking out Octo’s statement of claim in the 2017 Action, with costs below and on appeal to Octo.  NTT now applies, by way of its notices of motion filed on 13 June 2018, for leave to appeal to the Court of Final Appeal under both the “great general or public importance” limb and the “or otherwise” limb pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484.  It also seeks an order “suspending” the execution of our judgment pending the final appeal, which we will treat as a stay application.

2.  Having considered the parties’ written submissions, we take the view that the matter can be disposed of on paper without an oral hearing.  We now hand down our judgment.

QUESTIONS

3.  As presently formulated in the notices of motion and further expanded in the written submissions of Mr Remedios, for NTT, the questions said to be of great general or public importance are as follows :

(1)  What are the correct principles to be applied in Hong Kong to the construction of agreements?  (Question 1)

(2)  Did the Court of Appeal err in deciding that the matters pertaining to the construction of Clauses 12 and 13 of the Licence Agreement ought to be resolved at trial?  (Question 2)

(3)  How the Court of Appeal should exercise its power of review in a case concerning pure question of construction of a written contract in an application for summary judgment?  (Question 3)

(4)  What should be the rules of pleading for restitutionary claim?  (Question 4)

THE “GPI” LIMB

4.  Question 1 simply does not arise in these appeals.  For both before the judge below and before us, there was no disagreement between the parties on the principles to be applied on the construction of the Licence Agreement.  And our decision does not turn on what should be the proper principles of construction.

5.  In respect of Question 2, in holding that the construction of Clauses 12 and 13 had to be resolved at trial, we took the view that the relevant factual matrix must be fully explored for the court to take an informed view on their correct meaning.  Our decision is an application of the well-established principle of construction.  It is also specific to the actual circumstances of the case before the court.  No question of great general or public importance arises.

6.  Question 3 must also depend on the actual circumstances of the case before the court.  It is therefore a case-specific question, not capable of giving rise to any great general or public importance.

7.  The rules for pleadings, including those for restitutionary claims, are well-settled. Question 4 cannot possibly give rise to any great general or public importance.

8.  In any event, for the reasons that we gave in our main judgment, none of Questions 2 to 4, in the context of these appeals, is reasonably arguable.

9.  We therefore refuse to give leave to appeal on the “great general or public importance” limb.

THE “OR OTHERWISE” LIMB

10.  The usual practice is for the Court of Final Appeal to consider if leave should be given under the “or otherwise” limb.  We see no reason to depart from it.  We therefore also refuse to give leave under this limb.

CONCLUSION

11.  For the above reasons, we dismiss NTT’s application for leave to appeal and the stay application.  We further order NTT to pay Octo costs, summarily assessed at HK$150,000.00.