THE INCORPORATED OWNERS OF HONG LEONG INDUSTRIAL COMPLEX AND ANOTHER v. HL RESOURCES LTD FORMERLY KNOWN AS HONG LEONG INVESTMENT CO LTD AND ANOTHER

CACV 189/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 189 OF 2009

(ON APPEAL FROM HCA NO. 2572 OF 2005)

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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 from a judgment of this Court given on 11 February 2010.  By that judgment, the Court upheld the decision of the judge below.  The claim had been in respect of a claim for damages for breach of the Deed of Mutual Covenant and an order for compensation in equity and an account and so forth.

2.  This application for leave to appeal is put upon two grounds.  The first ground is that it comes within section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

3.  In my view, in light of the numerous decisions of the Court of Final Appeal in respect of the interpretation of section 22(1)(a), it is quite clear that the claims in this case are not liquidated claims.  In the Statement of Claim, reference is made to various sums but the claims are in respect of damages and in respect of account of profits and these, by their very nature, are unliquidated.  In view of the decisions of the Court of Final Appeal, I have no hesitation whatsoever in refusing the application on that ground.

4.  The second ground of the application for leave to appeal is that this case involves a matter of great general or public importance, on the basis that it involves the waterproofing layer in a building.  In my view, there are no grounds for saying that it is a matter of great general or public importance.  In the first place, the decision purely turned upon the factual dispute and the expert evidence in respect of the issues.  In the second place, it also involves interpretation of the Deed of Mutual Covenant, and although there are, of course, many buildings in Hong Kong, I do not see that the matters raised in this case can be characterised as matters of great general or public importance.  I therefore would not grant leave in respect of that subsection either.

5.  I would therefore dismiss this application.

Hon Kwan JA:

6.  I agree with the judgment of the Vice-President.

Hon Stone J:

7.  I also agree.