SHELL HONG KONG LTD. v. YEUNG WAI MAN KIU YIP CO. LTD. AND ANOTHER

CACV 3749/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3749 OF 2001

(ON APPEAL FROM HCA 318 OF 1999)

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D E C I S I O N

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

1. This is an application for leave to appeal against the decision of Mayo V-P and myself, the date of judgment being 26 September 2002. The judgment had apparently been perfected by 5 November 2002.

2. Section 34B(4)(a) of the High Court Ordinance provides for the composition of the Court of Appeal sitting in its civil jurisdiction. Section 34B(4)(a) provides that the court shall, if it consists of two Justices of Appeal, be duly constituted for the purpose of hearing and determining any appeal against an interlocutory order or interlocutory judgment.

3. The issue here is whether the decision of the first instance judge on the matter referred to him under Order 14A was an interlocutory order or interlocutory judgment.

4. Mr Chiu for the Applicant relies on the case of B + B Construction Ltd v Sun Alliance and London Insurance Plc [2001] HKLRD 1, although it must be noted that in that case it was agreed that the point determined there under Order 14A would be finally dispositive of the entire action. That is not the case here.

5. We consider that it is arguable and suitable for decision by the Court of Final Appeal whether the decision of a first instance judge on a matter referred to him under Order 14A which is not finally dispositive of the entire action but is finally determinative of one of the issues in the action is a final or interlocutory order for the purposes of an appeal to the Court of Appeal.

6. I should add that speaking for myself, in relation to the point taken by Mr Pow for the Respondent in relation to Section 14(5) of the High Court Ordinance, it was not argued before us and it was therefore not considered whether the decision of the first instance judge was a final or interlocutory order.

7. Accordingly we would give leave under Section 22(1)(b) of the Court of Final Appeal Ordinance for the issue to be decided by the Court of Final Appeal namely, whether in an application under Order 14A of the High Court Rules an issue which was finally determinative of one of the issues but was not finally dispositive of the entire action is a final order or an interlocutory order for the purpose of an appeal to the Court of Appeal.