FONG YEE LAN v. YIU YAU PING

------

[Application for leave to appeal to the Privy Council]

----------------------

J U D G M E N T

----------------------

Fuad, V.-P.:

1. On 28th January 1992 this court, as presently constituted, handed down a judgment upholding a summary judgment for specific performance with an inquiry as to damages entered in the High Court on 21st July 1991 under RSC O.86 against the vendor of a flat at the suit of the purchaser. The vendor who lost the appeal now seeks the leave of this court to appeal to Her Majesty in Council.

2. Mr. Oderberg, who did not appear in either court, has sought to persuade us that the intended appellant has an appeal as of right under rule 2(a) of the Order in Council which regulates appeals from this court to the Privy Council. He had to acknowledge that this court has consistently held that the decision as to whether a judgment is final or not for the purposes of rule 2(a) is to be governed by what we have called the "application" approach rather than the "order" approach so that the test is that the judgment is to be regarded as interlocutory unless it is given on an application which would have the effect (whatever the result of the application) of finally disposing of the controversy between the parties.

3. Put another way, for the purposes of the rule, this court has always held that a judgment can only be treated as final if the whole cause or matter would, subject to appeal, have been finally determined whichever way the court below had decided the issues then before it. It is not necessary to cite all the authorities which demonstrate the consistent approach of this court. I would merely mention two which are reported and two which are not reported. There is Coronation Electronics Ltd. v. Tharoomals (H.K.) Ltd. [1986] HKLR 1168 and First Pacific Bank v. Robert H.P. Fung [1990] 1 HKLR 527. One of the unreported cases is Credit Agricole v. Crossland Industries Corporation and Another, Civil Appeal No. 63 of 1988, (28th July 1988) where an attempt was made in an O.14 case to persuade this court to depart from its previous practice as to the approach adopted. The court comprising Cons, V.P., Clough, and Power, JJ. A. declined the invitation to alter the established practice. Chiap Hua Flashlights Ltd. v. Markfaith Investment Ltd., Civil Appeal No. 112 of 1988 (29th March 1989) was on O.86 case like the present. It was there held by the court without argument to the contrary by counsel that further appeal did not lie as of right.

4. Mr. Oderberg submitted that he could draw some support for his proposition that the instant case involved a final judgment for the purposes of rule 2(a), from our decision in the First Pacific Bank case. I must confess that I do not see how it can be said that there is anything in that authority which lends support to his general proposition that since the issues between the parties were finally determined by the order for specific performance, this, somehow, made the judgment sought to be appealed from a final judgment within the meaning of the rule despite the authorities to which I have preferred. I emphasize that in the First Pacific Bank case we expressly approved the test applied in the Coronation Electronics Ltd. case.

5. Speaking for myself, I think it would be wholly undesirable for this court suddenly to depart from the practice adopted for so many years. It seems to me that it is far too late. If the practice is to be altered, this could only be done if their Lordships interpret rule 2(a) differently from the construction put upon the rule by the Hong Kong Court of Appeal or, of course, if the Order in Council is amended.

6. I would, therefore, hold that the applicant does not have an appeal as of right.

7. As regards rule 2(b), Mr. Oderberg has submitted that two matters arising in the intended appeal can be said to be questions which fall within that part of the rule. Firstly, whether the word "fail" as it appears in clause 7 of the Provisional Agreement, excludes an intentional failure to complete the purchase and sale by the defendant/appellant so as to give the plaintiff/respondent relief over and above that provided for specifically in the agreement and secondly, whether the agreement in relation to which specific performance was granted, constituted a binding contract in view of the matters not covered in it. I do not think it is necessary for me to recapitulate what was said in his judgment by Nazareth, J.A, on behalf of the Court. I content myself by saying, with very great respect, that I find it quite impossible to conclude that either of the matters Mr. Oderberg seeks to raise before their Lordships (despite the fact that the agreement used in this case is one commonly employed in Hong Kong) are questions which are of great general or public importance. Nor do I find any other reason why those questions should be submitted to Her Majesty in Council for decision.

8. I would therefore dismiss the application with costs.

Penlington, J.A.:

9. I have no doubt that following the decision in Coronation Electronics Ltd. this is an interlocutory judgment and that leave is required under rule 2(b). Turning to the question whether this is a matter of great general or public importance, of course, I accept what Mr. Oderberg has said, that these are questions involving clauses which are common in agreements of sale and purchase of property in Hong Kong, but I think here it was the conduct of the parties that transpired in this particular case which decided the matter. I would not regard this as a decision of great general or public importance. I would also refuse leave.

Nazareth, J.A.

10. I agree with my Lords the Vice President and Penlington, J.A. I have nothing to add as regards rule 2(a). With reference to the points made by Mr. Oderberg in relation to rule 2(b), I cannot see that any matter of great general or public importance arises on the second matter Mr. Oderberg raised, that is whether the agreement constituted a binding agreement. This was a matter resolved in relation to the particular contract and circumstances. As to the first matter, that is the effect of the word "fail" in the context of clause 7, again, I do not see that this can be said to be a matter of great general or public importance. Moreover, as can be seen from the judgment, this was a matter within the construction of clause 7 which counsel for the respondent at the appeal elected not to pursue. I would, therefore, agree with the order proposed by my Lord the Vice President.

Fuad, V.-P.:

11. I wish to add a comment on the question whether the application for leave to appeal was filed within time. The issue was not raised by Mr. Robert Tang for the plaintiff/respondent, and has not been argued, but I think it is desirable to mention that I entertain some doubt whether in fact the application was filed in time. Subject to the power of the court to extend time under rule 3A, rule 3 of the relevant Order in Council requires that applications to this court for leave to appeal to the Privy Council be made "within 14 days from the date of the judgment to be appealed from". In this case, as we know, the judgment was handed down on 28th January 1992 and the application was not filed until 8th April 1992. From the affirmation supporting the application it seems clear that the solicitors acting for the intended appellant thought that time only began to run once a copy of the sealed order was served upon the appellant, the order having been sealed on 25th March 1992.

12. I do not think that it should be assumed that the provisions of O.59, r.4 of the Rules of the Supreme Court (which provide that time runs from the date on which the judgment or order of the court below was sealed or otherwise perfected) are applicable to the order in Council we are considering. It might be that more relevant are the authorities which apply to appeals from the English Court of Appeal to the House of Lords, in which circumstances it seems that the practice is to calculate time from the actual date that the judgment was given.

13. I hope that practitioners will appreciate that the time limit is important in these applications and that consideration will be given as to the true meaning of rule 3 so that it is not contravened on account of any misconceptions there might be.