NEW TECHNOLOGY CABLE LTD. v. POPBRIDGE INDUSTRIAL LTD.

CACV50/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 50 OF 2000

(ON APPEAL FROM HCA 7820 OF 1999)

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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. The application is in respect of a judgment which was given on 3 May 2000 by this court on an interlocutory appeal. The members of the court on that occasion were Godfrey VP and Keith JA. On that occasion, the court allowed the appeal in a way which was really to express the order which was arrived at in the court below in a manner which was more appropriate.

2. The claim arises in this way. There was a debt which was owed by the defendant to a third party company and the plaintiff, which was a wholly owned subsidiary of a company which had taken a financial interest in the defendant, arranged to discharge that loan of something over $1 million by entering a loan agreement with the defendant which entailed a payment of interest if the loan was not discharged within 1 month of 5% per month.

3. There are a number of defences taken. The relevant defence for present purposes turns upon the fact that it is said that Mr Lo, who signed the agreement on behalf of the defendant, had no authority to enter that loan agreement.

4. The Court of Appeal dealt with the point of authority. In the judgment of Godfrey VP, he said :

"But the defendant has accepted the benefit of the advance of the money and there can, in my view, be no better act of ratification of what Mr Lo did than that, even [if] it be the case that Mr Lo had originally no authority to countersign the letter so to bind the defendant."

Keith JA observed that :

"at no time has the defendant sought to disavow the loan by procuring that sum to be repaid to the plaintiff. Thus, to the extent that Mr Lo had not been authorised to accept the plaintiff's offer, the defendant can in the circumstances be said to have ratified his acceptance of the offer."

5. Before us today, Mr Wong has pointed out that this point of ratification was a new point and he says that there would have been evidence to show that the defendant did object to the loan at the time.

6. Turning to section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap.484, section 22(1)(b) gives the right of appeal at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision. Having outlined the major point which arises in this case, in my view, I do not consider that this is a matter of great general or public importance. It is no doubt important for the defendant, but it is not of general or public importance. Hence, I do not see that it falls to this court to grant leave on that basis.

7. There may be grounds based on the "or otherwise" in view of the submissions which have been made which, in my view, would perhaps have to be supported by some form of evidence to show that the submissions have merit. But I do not consider that this is a matter for this court but rather it seems to me that it is a matter for the Court of Final Appeal as to whether they are prepared to accept the appeal on the limb "or otherwise".

8. This being an interlocutory appeal, Mr Wong has not taken the point here that leave could be given as of right even though the sum involved was in excess of $1 million.

9. In those circumstances, I consider that this court should not give leave to appeal.

Keith JA :

10. I agree.