KAO, LEE & YIP v. DONALD KOO HOI YAN and Others

IN THE COURT OF APPEAL

1994, NO.20
(Civil)

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J U D G M E N T

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Godfrey, J.A.:

1. We have had mentioned to us this morning the matter of the order which this court ought to make as a result of its judgment disposing of the appeal in this case on 23 August 1994. The case has been listed for mention on the points which divide the parties, which arise as follows.

2. In the course of an application for leave to appeal to the Privy Council (which this court refused on 26 October 1994) the appellants (whose appeal to this court had failed) sought discovery of certain accounts being kept by the first respondent under an order of the court.

3. The purpose of the application for discovery was to see whether or not the profits made by the first respondent in the course of the conduct of which the appellants complained exceeded $500,000; if the sum exceeded $500,000, and was recoverable in the action, then an appeal would lie to the Privy Council as of right.

4. But as the judgment of this court on the application for leave to appeal made clear, the sum of $500,000 was a precise figure and therefore the appellants could not bring themselves within the rule which entitles an appellant in certain circumstances to appeal to the Privy Council as of right, whatever the accounts might have disclosed. Furthermore, the alleged loss of profits did not represent damages for breach of contract, the only claim open to the appellant in the proceedings.

5. So the appellants' application for discovery ought to have been dismissed, and dismissed with costs. However, no application was made by either side, at the hearing of the application for leave to appeal, formally to dispose of the application for discovery. In those circumstances it was necessary for the matter to be mentioned to this court unless it could be disposed of by agreement. It has not been possible to dispose of the matter by agreement and we now have to decide what to do about it.

6. For myself, I have no doubt that the right course is to treat the application for discovery as before us and to dismiss it with costs. It must be treated as before us so that it can be disposed of; and it should be dismissed with costs because there was no substance or merit in it and we have already dealt with the considerations which dictate its dismissal.

7. So, the order I would propose for disposing of the appeal and of the application for leave to appeal to the Privy Council should include an order whereby the application for discovery is dismissed with costs. Since the matter had to be mentioned this morning to resolve this point, I propose that there be no special order as to the costs of the hearing this morning; the costs of it should be costs in the appeal, which costs should follow the event; i.e. the appellants must pay the respondents' costs of the appeal, and of the issue of which it disposed, in any event.

Leonard, J.:

8. I concur.

Power, V.P.:

9. I also concur and an order will be made as Godfrey, J.A. has proposed.