FIRST LASER LTD v. FUJIAN ENTERPRISES (HOLDINGS) CO LTD AND ANOTHER

CACV 126/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 126 OF 2008

(ON APPEAL FROM HCA NO. 4414 OF 2001)

____________

_______________

R U L I N G

_______________

Hon Yuen JA (giving the ruling of the court):

1.  We consider, having examined the Judgment,  that the Judge had not dealt with the issue of estoppel by convention.  We also consider, contrary to Mr Chan Chi Hung SC’s argument, that the Judge had not“rejected all the Defendants’ defences” to the estoppel by convention argument.   Therefore, the Plaintiff’s Ground (7) in its draft Amended Respondent’s Notice, as presently drafted, is predicated on a wrong premise.

2.  However, Mr Chan has also said that he would like to raise the estoppel by convention argument in any event.

3.  We are mindful of the lateness at which this argument has been raised before us.   However, we have to consider all circumstances of the case and we see no prejudice to the Defendants which cannot be compensated by costs. 

4.  We would therefore grant leave to the Plaintiff to proceed with Ground (7) of the draft Amended Respondent’s Notice as follows:-

“(7) the learned judge ought to have found and held in favour of the Plaintiff that the Defendants are estopped from denying the validity and effect of the First Laser Agreement and/or the Plaintiff’s interest to and beneficial ownership of 51% of the shares of and in FCL;”

After hearing submissions on costs, this court ordered that:

5.  Costs of and occasioned by the Plaintiff’s application for leave to amend Ground (7) of the Amended Respondent’s Notice to be paid forthwith to the Defendants.  A gross sum assessment skeleton bill of costs is to be provided.