FIRST LASER LTD v. FUJIAN ENTERPRISES (HOLDINGS) CO LTD AND ANOTHER

FAMV No. 25 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 25 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 126 OF 2008)

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Between

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DETERMINATION

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Mr Justice Ribeiro PJ :

1.  The plaintiff makes this application for leave to appeal even though it has already obtained leave to appeal as of right from the Court of Appeal.  The hearing has been fixed for June this year.

2.  Unusually, on the fifth day of the hearing in June 2010, the Court of Appeal permitted amendments to be made which expanded the scope of the appeal and adjourned part-heard for further argument in August and September 2010.   The circumstances are explained in the judgment of Yuen JA dated 8 July 2010.[1]  The present application is for leave to appeal against those interlocutory rulings by the Court of Appeal.

3.  At trial, the Judge[2] had held in the plaintiff’s favour, awarding it damages for breach of contract.  The Court of Appeal allowed the plaintiff to contend by a respondent's notice that the 1^st defendant was estopped by convention against arguing for the invalidity of those contracts and also permitted to raise as an alternative cause of action, a claim for compensation based on PRC law.  In response, the defendant sought and was allowed to put in a rejoinder alleging that a doctrine of estoppel by convention was unknown to PRC law.

4.  The plaintiff objected to the rejoinder on the basis that it would require the evidence to be re-opened as to the state of mainland law.  However, the Court of Appeal ruled against the objection pointing out that no evidence had been produced by the plaintiff to suggest that any basis exists for suggesting that an equivalent doctrine exists under PRC law.

5.  In our view, that is the crucial deficiency in the plaintiff’s application.  As Yuen JA pointed out, the defendants had adduced expert evidence at trial to the effect that no such doctrine exists under PRC law.  It was unanswered in the plaintiff’s evidence.  Nor has the plaintiff sought to place de bene esse before either the Court of Appeal or this Committee any evidence to suggest that if mainland law applies, an equivalent to the doctrine of estoppel by convention would prevent the defendants from relying on the postulated invalidity of the contracts.  At highest, Counsel for the plaintiff submitted that they had conferred with experts prior to this application and that the point is not at a dead end.  An application to adjourn to allow the plaintiff six weeks, later reduced to three weeks, to put in a draft affidavit shows that the plaintiff is in no position to posit the existence of any dispositive evidence on this point.

6.  The application is made solely on the “or otherwise” basis and we have made it plain that it is only in highly exceptional circumstances that leave will be granted on that ground.  We have emphasised, among other things, that it must generally be shown that the result of the appeal is likely to turn on how the point sought to be raised is resolved.[3]  That has not been shown and we accordingly dismiss this application with costs.