OSK ASIA FUTURES LTD. v. LAM CHI BIN STANLEY AND ANOTHER

CACV 2690/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2690 OF 2001

(ON APPEAL FROM HCA NO. 10335 OF 2000)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal. It is made on two bases; first, under Section 22(1)(a) as of right, but also under Section 22(1)(b) that there is a matter of great general or public importance to be considered. The facts of this case are set out sufficiently in the judgments in the court below and of this court and there is no need to repeat them here.

2. This matter was an application under Order 14 for Summary Judgment and therefore this court is bound to deal with it as an interlocutory judgment. Therefore it behoves the applicant to show that there is a question of great general or public importance for this court to be able to grant leave.

3. The question which the 1st defendant wishes to raise may, I think, be summarised as to whether his liability as principal to his agent, namely the plaintiff, was extinguished by reason of the fact that the agent had agreed to transfer the contractual obligations to another agent, namely the 2nd defendant, despite the fact that transfer was not effected due to a failure beyond the control of the first agent and the principal.

4. It seems to me that that would appear to be a straightforward application of contract law and is not a matter of great general or public importance which this court should give leave to appeal to the Court of Final Appeal. Mr Lam has also sought to raise a number of questions as to fact and complains that he has not had a trial of the matter.

5. In the circumstances of this case, this court has already considered those issues as to whether this matter calls for a trial and the questions of fact which Mr Lam has sought to raise are either wholly new and totally unsupported by evidence, namely allegations of some kind of collusion between the plaintiff and the 2nd defendant, or else are matters which are irrelevant to the main issue in this case.

6. In those circumstances, I consider that this court is not in a position to grant Mr Lam leave to appeal to the Court of Final Appeal and the application should therefore be dismissed.

Hon Le Pichon JA:

7. I agree.