廈門新景地集團有限公司 formerly known as 廈門市鑫新景地房地產有限公司 v. ETON PROPERTIES LTD AND OTHERS

CACV 158/2012

[2018] HKCA 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 158 OF 2012

(ON APPEAL FROM HCCL 13 OF 2011)

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JUDGMENT ON LEAVE TO APPEAL
AGAINST JUDGMENT ON ELECTION

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

1.  This Judgment deals with the Notice of Motion issued by the 1^st and 2^nd defendants on 6 November 2017 for leave to appeal to the Court of Final Appeal against the order of this court made on 20 October 2017.

2.  Essentially, this court had held in a Judgment given on 15 April 2016 (“the Main Judgment”) that the plaintiff was entitled to elect between:

(1)   maintaining a judgment it had entered against the 1^st and 2^nd defendants in HCCT54/2007 under the statutory process of s.2GG and s.40B of the Arbitration Ordinance Cap. 341 at a time when it was not aware of various acts done by the 1^st and 2^nd defendants, or alternatively,

(2)    obtaining a judgment in HCCL13/2011 for damages for breach of the implied promise to honour the arbitral award in a Common Law action on the award.

3.  On 13 May 2016, the 1^st and 2^nd defendants filed a notice of motion seeking leave to appeal to the Court of Final Appeal against the Main Judgment regarding the plaintiff’s entitlement mentioned above.  On the same day, the plaintiff also filed a notice of motion seeking leave to appeal to the Court of Final Appeal against those parts of the Main Judgment dismissing its claims in constructive trust and economic torts.

4.  By a summons filed on 27 October 2016, the 1^st and 2^nd defendants sought an order (without prejudice to their application for leave to appeal to the CFA) that the plaintiff be required to make the election referred to above (“the summons for election”).

5.  On 19 September 2017 we heard both notices of motion and the summons for election.

6.  Judgment on the summons for election was handed down on 3 October 2017. Thereafter, there were two letters both dated 9 October 2017 from the plaintiff’s solicitors, the effect of which was that the plaintiff had elected to obtain a judgment in HCCL13/2011 for damages for breach of the implied promise to honour the arbitral award.  Consequently, on 20 October 2017, this court ordered that the judgment in HCCT54/2007 be set aside, and judgment in HCCL13/2011 be entered for damages as mentioned above.

7.  On 6 November 2017, the 1^st and 2^nd defendants filed a notice of motion for leave to appeal the order of 20 October 2017.  The court directed that this notice of motion be dealt with on paper which we do now.

8.  It is clear from the grounds of appeal contained in the 6 November 2017 notice of motion that it was thought that, as a matter of procedural requirements, there should be a separate application for leave to appeal the order of 20 October 2017, but the application was based on the same substantive grounds as the application for leave to appeal the Main Judgment. 

9.  By a Judgment to be handed down simultaneously with this Judgment, this court dismissed the 1^st and 2^nd defendant’s notice of motion (as well as the plaintiff’s notice of motion) in respect of the Main Judgment. Given that result, it follows that the notice of motion of 6 November 2017 should similarly be dismissed with costs to be taxed if not agreed.