ROE INVESTMENT LTD. AND ANOTHER v. UNIONIX DEVELOPMENT LTD.

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMV No. 10 of 1999

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 250 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. In permitting Unionix Development Ltd to proceed to seek damages in its action, the Court of Appeal based its decision on its view that Roe Investment Ltd was not entitled to interplead. But was the crucial question whether Roe was entitled to interplead? Or was it whether the effect of the consent order was that Roe's liability to Unionix under the cause of action on which Unionix's action was based had been discharged once Roe had promptly performed the option in conformity with Godfrey JA's decision on the issues pending the trial of which issues that action had been stayed by consent.

2. In our view, it is at least reasonably arguable: (i) that the latter question was indeed the crucial one, and (ii) that the correct answer to it is an affirmative one in Roe and the guarantor's favour. Even on that basis alone we would grant Roe and the guarantor leave to appeal to the Court of Final Appeal. We grant them such leave without limiting the issues which may properly be raised in the appeal.

3. As to the costs of this application, they will be costs in the appeal.