KOU LAU RU LING v. TSE SUI LUEN

CACV 294/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 294 OF 1999

(ON APPEAL FROM HCA 4669 OF 1999)

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J U D G M E N T

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Ribeiro JA:

1. On 8 September 1999, the five plaintiffs concerned in this appeal successfully obtained summary judgment for specific performance of the defendant's obligations under a Deed dated 2 March 1998.

2. The defendant's appeal was dismissed by this court on 3 February this year. The defendant now seeks leave to appeal to the Court of Final Appeal.

3. The defendant has abandoned his application for leave to be granted as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance.

4. He now contends only that the relevant issues ought to be submitted to the Court of Final Appeal for decision because they involve questions of great general or public importance as provided for by section 22(1)(b).

5. The only remaining question as formulated in the Notice of Motion reads as follows :-

[The appeal concerns :-]

"(b)(i) proper principles to be adopted on interpretation of different types of commercial contracts in particulars synallagmatic contracts including Deed of Put Option where (sic) are commonly used in light of apparent difference of approach adopted by the House of Lords in Mannai Investment Co. Ltd v. Eagle Star Life Assurance Co. Ltd [1997] AC 749 as in contrast to approach adopted by the court in the long line of authorities including Hare v. Nicoll [1996]2 QB 130."

6. In my judgment, the application on this ground must fail. The principles of construction adopted in deciding this appeal have now been firmly established at the highest levels both in England and Wales and in the Hong Kong SAR.

7. Mr Kenneth CL Chan, appearing for the defendant submits that an important question arises as to whether such principles of construction apply to unilateral contracts as distinct from synallagmatic contracts.

8. This is an issue which is dealt with at page 14 of the judgment in this appeal. As is there pointed out, Lord Hoffmann in the Mannai case made it clear that the unilateral character of option notices and the requirement of strict compliance with any relevant requirements in the giving of such notices make no difference to the application of the principles. What constitutes "strict compliance" with such requirements is determined by applying the relevant principles of construction to the governing contract.

9. It is accordingly my view that the proposed appeal raises no fresh issues as to the formulation or application of the principles in question and therefore that the question is not one which ought to be referred to the Court of Final Appeal for decision under section 22(1)(b).

10. The application therefore, in my view, must be dismissed.

Rogers JA:

11. I agree.

Godfrey VP:

12. I also agree.