WONG WUI v. YIN SHIU HEE PETER

CACV 812/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 812 OF 2000

(ON APPEAL FROM HCA NO. 9042 OF 1998)

______________

______________

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

1. This is an application by the Defendant for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). The relevant facts appear sufficiently from the judgment of the Court of Appeal of 15 March 2001.

2. In Johnson v. Agnew [1980] AC 367, the House of Lords decided that there may well be circumstances in which it is open to the contracting party not in breach of contract to revoke his original election, i.e. his election to affirm the contract and seek specific performance of it, and instead to seek damages for the other party's breach of the contract. One of those circumstances was identified in Safehaven Investments Inc. v. Springbok Ltd. (1996) 71 P. & C. R. 59, namely where the innocent party has affirmed the contract and the party originally in breach continues to be in repudiatory breach of it. The correctness of these principles is not disputed in the questions of law which the Defendant wishes to be referred to the Court of Final Appeal for decision. It is true that Mr John Mullick for the Defendant has today said that these principles have a particular application in Hong Kong due to the volatility of the property market, but the correctness of the principles themselves is not in doubt.

3. It is important to note that clause 31 of the sale and purchase agreement ("the agreement") did not merely permit the Plaintiff to inspect the flat before completion: it imposed a duty on the Defendant to allow the Plaintiff to do so. Thus, the only question which the proposed appeal raises, when properly analysed, is whether, after the Plaintiff had elected to affirm the contract, the Defendant's failure to inform the Plaintiff that he could inspect the flat after all without having to pay an additional sum constituted a continuing breach of clause 31 of the agreement. We regard the answer to that question as turning on the particular facts of the present case rather than on the determination of a question of law of great general or public importance. For that reason, this application for leave to appeal to the Court of Final Appeal must be dismissed.