LAW SIU YIN ADA v. LO HUNG KWAN

CACV 1034/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1034 OF 2000

(ON APPEAL FROM HCAP NO 11 OF 1999)

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J U D G M E N T

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Hon Le Pichon JA:

1. This is an application for leave to appeal to the Court of Final Appeal. The applicant's appeal from Deputy Judge Muttrie's dismissal of her appeal against Master Ho's order to strike out her amended Statement of Claim, pursuant to order 18, rule 19 and/or the inherent jurisdiction of the court, on the ground that it was frivolous or vexatious, or otherwise an abuse of the process of the court was dismissed by this court. The issue involved in this appeal is whether the deed of settlement should be rescinded on the ground of misrepresentation and/or mutual mistake and/or duress. The plaintiff asserts that she is entitled to a half share in an estate that is worth some $250 million so that if the deed of settlement were set aside, her share would be well in excess of $1 million.

2. The applicant will be entitled as of right to appeal to the Court of Final Appeal only if she can establish that the appeal is a final appeal and the appeal involves a claim amounting to $1 million or more. The first question to be decided is whether the appeal is final or interlocutory. Mr Lo who represents the applicant relied on Egerton v Shirley [1945] KB 107. That case involved an order made by a Master pursuant to Order 14 giving leave to the plaintiff to sign judgment against the defendant, and it was held that it was a final order which 'finally disposes of the rights of the parties'. What we have before us, however, is not an Order 14 application. The applicant's claim was struck out on the ground that it was frivolous or vexatious. It is now settled law that orders dismissing actions - either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action - have for a very long time been treated as interlocutory. See In re Page [1910] 1 Ch 489 and Hunt v Allied Bakeries Limited [1956] 1WLR 1326 at 1328. Although in the case of In re Page, Buckley L.J. expressed some disquiet and he said this:

"To my mind it would be reasonable to say that that is a final order. But I do not think I am entitled to found myself on that, because there have been many decisions in which orders apparently final have been treated as interlocutory. The Master of the Rolls has referred to one or two of them. I could perhaps distinguish them if I set myself to work to do so, but practically the substance of the matter is this. It does not matter very much whether an order of this kind is held to be interlocutory or final so long as the Court decides the matter one way or the other so that suitors know what their rights are. I am not prepared to differ from the view taken by the other members of the Court."

So Buckley L.J., although expressing some disquiet, in the end decided to follow the earlier decisions and concur with the other members of the court. In my view, the judgment appealed from was an interlocutory judgment and not a final judgment for the purposes of section 22(1)(a) of the Court of Final Appeal Ordinance.

3. But quite apart from that aspect, the applicant faces a further hurdle so far as section 22(1)(a) is concerned. An unliquidated claim is outside section 22(1)(a). That is clear from the decision of the Court of Final Appeal in Cheng Lai Kwan v Nan Fung Textiles Limited [1998] 4 HKC 1. In that case, it was held that section 22(1)(a) has to be strictly construed and that a claim to an award of unliquidated damages does not fall within section 22(1)(a). For these reasons, I find that the applicant is not entitled to appeal as of right.

4. I now turn to consider whether the discretion ought to be exercised under section 22(1)(b) of Cap. 484. In order for leave to be granted, the applicant has to satisfy this court that the question involved in the appeal is one which, by reason of its great general and public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. The issue involved is whether a deed of settlement ought to be rescinded. The law on the grounds of rescission is well settled. Whether or not such grounds are made out would depend on the particular facts of the case and does not involve any question of great general or public importance.

5. Insofar as the discretion of the court contained in the "or otherwise" limb of section 22(1)(b) is concerned, it may be appropriate to exercise the discretion if it can be said as a matter of the utmost probability, or even of virtual certainty, that the amount recoverable will be in excess of $1 million. See the Cheng Lai Kwan case at p. 4C. In the present case, the value of the estate is a matter of pure speculation on the part of the applicant. It is a fact that in 1996, the applicant was prepared to accept $8 million as her share in the estate. She has been paid that sum. There is simply no evidence to show that were the deed of settlement to be set aside, the applicant would be bound to recover, additionally, a sum in excess of $1 million as her share in the estate. In my judgment, the discretion in the "or otherwise" limb is simply not engaged.

6. For these reasons, I would dismiss the application.

Hon Woo JA:

7. I agree. The application is dismissed.