INTERFORM (INTERIOR & MARBLE) CO., LTD. v. FAR EAST WAGNER CONSTRUCTION LTD.

CACV 59/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 1999

(ON APPEAL FROM HCA 6365 OF 1998)

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D E C I S I O N

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Mayo J.A.:

1. This is an application for leave to appeal to the Court of Final Appeal pursuant to s.24 of Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2. The appeal which was before us related to an Order 14 application. We dismissed the appeal. I am satisfied that the application cannot be made as of right as it has to be treated as an interlocutory application. The authority for this is Wai Hung Stationery Co. v. HKSAR [1998] 2 HKC 229. Even if there was any doubt in the matter the existence of the outstanding counterclaim would definitely support the contention that the application was an interlocutory application.

3. The matter accordingly has to proceed under s.22(1)(b). That is the Applicant has to demonstrate that a question of great general or public importance arises.

4. The question which has been formulated by Mr. Nasir is:

"Whether a defendant in an Order 14 application is fatally bound to an imperfect affidavit or whether that affidavit should be viewed together with other documents i.e. pleadings and exhibits thereto."

5. In my view this is not a question of great general or public importance. In my view this application for leave to appeal to CFA should be refused.

Leong, J.A.:

6. I agree. I have nothing to add.

Keith, J.A.:

7. I agree. Whatever the rights or wrongs of the "applications" test may be, the plain fact is that that is the test which the Court of Final Appeal in the Wai Hung Stationery Co. case has said should be applied. As for whether the appeal raises a question of great general or public importance, the question formulated by Mr. Nasir does not arise for consideration. It assumes that there was an imperfect affidavit, when the reason for the absence of an assertion that the loss was attributable to the Plaintiff's delay may well have been because there was no causal connection between the two. Moreover, the answer to the question posed in my view is obvious. On an Ord. 14 summons it is necessary for a defendant to verify the facts on which it relies. In the absence of an adjournment for the purpose of filing further evidence to plug the gap in its evidence, therefore, a defendant is fatally bound by any omissions in its evidence.

Mayo, J.A.:

8. The application is accordingly dismissed. Costs to the Plaintiff to be paid forthwith.