CHIAP HUA FLASHLIGHTS LTD v. MARKFAITH INVESTMENT LTD

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(Having adjourned to consider their decision the Court resumed.)

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JUDGMENT

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Cons, V.-P.:

1. Mr. Stone, we are minded at the present stage of our consideration to refuse the application on the ground that, although we tend at the moment to feel that our judgment with regard to the registration point may indeed raise a point of great general or public importance, the Purchaser's chances of success are so remote that their Lordships should not be troubled with it. At the same time we feel we should allow the Purchaser the opportunity to test their Lordships' preliminary views. We would therefore like to know, before finally making up our minds, if your clients would be prepared to undertake not to execute the judgment for a further 21 days in order to give the Purchaser the opportunity to apply for special leave if is so wishes. If the undertaking is not forthcoming then, of course, we shall have to reconsider and shall give our decision at some date in the future.

(After taking instructions counsel for the Vendor confirmed that he was instructed to give the undertaking suggested.)

Cons, V.-P.:

2. This is the judgment of the court upon an application for leave to appeal to Her Majesty in Council. The proceedings arise from the abortive sale of an industrial property in Kowloon. At first instance the judge made an order declaring 1. That the Defendant Purchaser was in breach of the agreement for sale by reason of non completion, and 2. That the Plaintiff Vendor was entitled to rescind and to forfeit the deposit, which had in fact been done. He further ordered that the lis pendens entered by the Defendant Purchaser in the Land Registry be vacated. He granted a stay of execution pending appeal to this Court. That was on the 8th September last year.

3. On the 16th March this year, having heard submissions on the appeal and adjourned to consider our decision, we rejected the Purchaser's application to introduce fresh evidence in the appeal; then on the same day, we subsequently delivered our judgment dismissing the appeal.

4. The Plaintiff now applies for leave to appeal both our decisions to Her Majesty in Council and further for a stay of execution pending the result of that appeal.

5. We have to remind ourselves at this stage that the proceedings in the lower court were by way of Order 86 for summary judgment, so that the matters before us are interlocutory. We can only grant leave to appeal to Her Majesty in Council if we are satisfied that the questions involved are of "great general or public importance or otherwise".

6. A short while ago we suggested that is would help us in our decision if Mr. Stone would be prepared on behalf of his clients to give an undertaking not to execute the judgment for a further 21 days should we refuse the application. That undertaking having now been given we do refuse the application. It is not then necessary to express any concluded opinion on the many interesting points that have been canvassed during the course of the submissions this morning, save to say that we have grave doubt whether, in view of the terms of the present order below, we would in any event have had jurisdiction to grant a stay of execution under Rule 5. We would be pleased to hear counsel as to costs this morning.