CHAMPION CONCORD LTD AND ANOTHER v. LAU KOON FOO AND ANOTHER

CACV 232/2010 AND CACV 233/2010

CACV 232/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 232 OF 2010

(ON APPEAL FROM HCCL NO. 1 OF 2010)

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CACV 233/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2010

(ON APPEAL FROM HCCL NO. 5 OF 2010)

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BETWEEN

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Hon Rogers VP:

1.  This is an application for leave to appeal from a judgment of this court given on 16 November of this year. I say “this court” because it was by two members of this court. I am reminded that when the appeal came on for hearing before this court was concerned as to whether the matter before us was truly interlocutory or was really a final order. We, therefore, raised this matter before the appeal was heard and an undertaking was given that written consent would be given by the parties that there was no objection to this matter being heard by two judges.

2.  The matter before the court, quite simply, was this:  that in the court below, the plaintiff had taken out Order 86 proceedings seeking, in effect, the house in question.  The defendant, for his part, had taken out two applications.  One was to strike out the claim and the other was what might be referred to as a corresponding Order 86 application on his part.

3.  The issue, that the parties were agreed was the only issue in the two cases, was the proper construction of a settlement agreement and the terms of it.  There was to be no oral evidence in the case, the matter was simply to be decided as a matter of construction.  Whichever party was successful in one of the Order 86 applications or the strike‑out application would, correspondingly, be successful in the other one and, whatever decision the judge came to, that would be the end of the matter.  There would never be a trial.  The matter would never go any further.

4.  The matter then came before this court.  The position was precisely the same and this court came to its decision.

5.  Now Mr Wright, who has appeared on behalf of the plaintiffs, wishes to appeal to the Court of Final Appeal and says that this should be treated as a final decision.

6.  I have to say that having considered the matter in the course of this hearing, I also agree with that, because although Order 86 applications and Order 14 applications are treated as interlocutory in the general run of things, because it is what is called “the applications test” which is considered, this case is a rather special situation.  Because there were opposing Order 86 applications, there is, to use the vernacular, nowhere to go.  The winner will take all and, as a matter of logic in the peculiar situation of this case, I cannot see that the decision is not a final decision.  Therefore, in the circumstances, I consider the matter does come within the provisions of Order 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Since that was the only matter that was in issue between the parties, I consider that the plaintiff should have leave to appeal to the Court of Final Appeal in this case.

7.  I would only add that if the Court of Final Appeal considers that I have taken a wrong approach in the matter, I have no doubt, as part of their judgment in the case, they will say so for further guidance of the Court of Appeal on a matter, which I have to say is not always all that easy to determine.

Hon Le Pichon JA:

8.  I agree.

Hon Kwan JA:

9.  I also agree.

(Submission re grant of stay)

Hon Rogers VP:

10.  We will grant you leave in the usual form and a stay until determination of the appeal in the Court of Final Appeal.