ACTIVE PROFIT LTD v. NISSHO IWAI HONG KONG CORPORATION LTD AND OTHERS

CACV 289/2004, CACV 290/2004, CACV 331/2005 AND CACV 333/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no S. 289 OF 2004, 290 OF 2004, 331 of 2005

AND 333 OF 2005

(on appeal from HCCL NO. 47 of 1998)

______________________

BETWEEN

  ACTIVE PROFIT LIMITED Plaintiff
  and  
  NISSHO IWAI HONG KONG CORPORATION LIMITED 1st Defendant
  (now known as SOJITZ (HONG KONG) LIMITED)  
  MILEMORE INVESTMENT LIMITED 2nd Defendant
MOTOYUKI KODERA 3rd Defendant
CARLOS YUK KEI CHO 4th Defendant

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 9 June 2006

Date of Judgment: 9 June 2006

Date of Handing Down Reasons for Judgment: 16 June 2006

__________________________

REASONS FOR JUDGMENT

__________________________

Hon Rogers VP:

1. This was an application for leave to appeal in a total of four cases all involving the same basic principle. The application wasput on the basis that the appellant was entitled to or ought to be granted leave to appeal to the Court of Final Appeal on the “orotherwise” limb of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484. The application was refused with costs withreasons to be given in writing.

2. The matter involved in these appeals was the costs which were incurred as a result of the plaintiff pursuing the remedies whichhad been granted following the judgment in the action in the Court of First Instance. Consequent upon the appeal in the action beingsuccessful in this court the plaintiff was no longer entitled to any of those remedies. Such a situation is not, perhaps, unusual. As explained in the reasons for judgment given in these cases on 28 September 2005, it is a matter of commonsense and logic thatthe costs incurred in enforcing the judgment which was subsequently set aside and in pursuing remedies granted by such a judgmentmust naturally be to the party that has successfully had the judgment set aside and had costs awarded against it as a result of theplaintiff seeking to enforce the original judgment. One would not expect to find considered judgments where such a point even hadto be considered. As pointed out in the reasons for decision, the matter has clearly been accepted as a basic proposition by judgesof considerable repute. In contrast no contrary view has been drawn to this court’s attention.

3. In those circumstances in view of the lack of merit in the grounds of the proposed appeal it would be inappropriate for this courtto grant leave to appeal under section 22(1)(b). Furthermore, should the plaintiff be successful in its appeal to the Court of FinalAppeal in the action, which is due to be heard this Autumn, in view of this court’s judgment on the matter for which leave is nowsought, the orders for costs which had originally been made would be reinstated. Any suggestion to the contrary would simply bea waste of time.

Hon Le Pichon JA:

4. I agree.

(Anthony Rogers)
Vice-President
(Doreen Le Pichon)
Justice of Appeal

Ms Sara Tong, instructed by Messrs Kao, Lee & Yip, for the Plaintiff/Applicant

Mr Anthony Chan, instructed by Messrs Clement Ng & Co., for the 1st Defendant in CACV 290/2004 & CACV 333/2005/Respondent

Mr Abraham Chan, instructed by Messrs Hastings & Co., for the 2nd, 3rd & 4th Defendants in CACV 289/2004 & CACV 331/2005/Respondents