RICHLY BRIGHT INTERNATIONAL LTD v. DE MONSA INVESTMENTS LTD

CACV 247/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 247 OF 2012

(ON APPEAL FROM HCA NO. 548 OF 2012)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.  On 22 November 2013, this court gave judgment dismissing the defendant’s appeal against the decision of Deputy High Court Judge Le Pichon, in which summary judgment was entered against the defendant. The defendant seeks leave to appeal to the Court of Final Appeal.

2.  Leave is sought under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484.  It is contended that the questions raised in the intended appeal are of great general or public importance.  The defendant also relies on the “or otherwise” limb.

3.  In the Notice of Motion, five questions are set out as questions of great general or public importance.  Three questions are put forward on the “or otherwise” limb.

4.  We do not propose to set out in this judgment any of the eight questions as framed, which ran into seven pages.  With respect to those who drafted the questions, we do not think they are properly framed.  The questions were posed on a number of premises or propositions suggesting the angle how they should be approached or pointing the way to how they should be answered.  In some instances, such as in Questions 2 and 4, loaded language was used.  We do not think the way in which the questions were framed is helpful to the court.

5.  Be that as it may, we will deal with the questions placed before us instead of seeking a proper formulation from the defendant, as submissions in writing have been lodged by all the parties.

6.  We will use the same abbreviations as adopted in our judgment of 22 November 2013 (“the Judgment”).

Question 1

7.  This relates to the ruling in §§52 and 53 of the Judgment that no triable issue is raised regarding the contention that 823 and Richly Bright do not share a legitimate common interest in the outcome of this litigation and hence maintenance and champerty are not engaged.

8.  The question is evidently fact sensitive.  Our ruling involved the application of established legal principles in Unruh v Seeberger (2007) 10 HKCFAR 31 to the facts of this case.  In any event, we do not think the defendant’s arguments are reasonably arguable.  We refuse to exercise our discretion to grant leave for Question 1.

Question 2

9.  This also relates to the ruling in §§52 and 53 of the Judgment that none of the actions taken by 823 and Richly Bright was capable of posing any risk to the integrity of the court’s processes.

10.  For the same reasons as in Question 1, we refuse to grant leave for Question 2.

Question 3

11.  The opening part of this question reads:

“Whether it is right, as a matter of law and/or public policy, for the Court of Appeal to find that losses attributable to prior sub-sales (regardless of number, the parties and the circumstances involved) were to be borne by the ultimate purchaser when the following criteria are satisfied – …” [italics supplied]

12.  The submission of the defendant regarding this question reads:

“The pertinent question is whether an ultimate purchaser will always be liable to all losses attributable to each and every prior sub-sales in a chain of confirmor sales, regardless of the number of prior sub-sales, the parties and the circumstances involved?” [italics supplied]

13.  With respect to those who framed the question, that is not the effect of the ruling in the Judgment, see §§34 to 43.  The two questions pertinent to this case as formulated in the Judgment are in §37.  They involved the application of established legal principles in Chen v Lord Energy Ltd (2002) 5 HKCFAR 297 to the fact situation of the present case.  How the questions ought to be answered is a question of fact depending on the circumstances of the case and the information available to the parties at the relevant time.

14.  We are not prepared to grant leave on this question.

Question 4

15.  This question was posed on the premise that the court gives summary judgment on the basis of the only pleaded case which is admittedly wrong and contradicted by the evidence.

16.  This premise does not arise on rulings of the Judgment.  It would appear to be directed against §§14 to 24 of the Judgment and the conclusion in §24 that the statement of claim sets out adequately how the loss and damage of Richly Bright was arrived at.

17.  We refuse to grant leave on this hypothetical question.  Besides, we do not think there is contradiction between the statement of claim and the evidence of Richly Bright.  Its stance has always been that it is entitled to take into account the sum of $19,989,990 in identifying its own net loss and damage of $9,000,990.

Question 5

18.  The argument advanced by the defendant here is that whenever damages are claimed in an application for summary judgment, if the court should find in the plaintiff’s favour, the court should just enter judgment for damages to be assessed, instead of proceeding to assess damages at the same time.

19.  We fail to see how this question of procedure, the answer to which would depend on the circumstances of each case, could be regarded as one of great general or public importance.  We refuse to grant leave for this question.

Questions under the “or otherwise” limb

20.  Three questions are raised here by the defendant.

21.  Again, the questions appear to us to be all of a fact sensitive nature and involved the application of established legal principles (Chen v Lord Energy and Polyset Ltd v Panhandat Ltd (2002) 5 HKCFAR 234) to the fact situation in this case.  We do not think the circumstances here would warrant taking the exceptional course of granting leave under the “or otherwise” limb (Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260).  Besides, the usual practice of the Court of Appeal is not to grant leave on the “or otherwise” limb but to leave it to the Appeal Committee of the Court of Final Appeal to decide whether that exceptional course should be taken (MGA Entertainment Inc v Toys & Trends (Hong Kong) Limited & Ors, CACV 104/2011, 22 October 2012, §13; An Chou & Ors v Zhou Zheng Kuan & Ors, CACV 193/2012, 23 September 2013, §14; Lau Cho Kun v Lau Siang Kok Lionel, CACV 212/2012, 16 October 2013, §17; Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd & Ors, CACV 93 to 96/2012, 28 January 2014, §33).

Orders

22.  For the above reasons, we dismiss the defendant’s Notice of Motion.  We make an order nisi that the defendant is to pay the costs of Richly Bright and 823 of this application and that in the case of 823 there would be a certificate for two counsel.