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)
BETWEEN Plaintiff ____________
Before: Hon Cheung, Yeung and Yuen JJA in Court
Dates of Hearing: 24-25 June 2010
Date of Ruling: 25 June 2010
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 hadnot“rejected all the Defendants’ defences” to the estoppel by convention argument. Therefore, the Plaintiff’s Ground (7) inits 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 circumstancesof 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:-
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 bepaid forthwith to the Defendants. A gross sum assessment skeleton bill of costs is to be provided.
Mr Benjamin Yu, SC, Mr Paul Shieh, SC and Mr Law Man Chung, instructed by Messrs Paul, Hastings, Janofsky & Walker, for the 1st and 2nd Defendants (Appellants)
Mr Chan Chi Hung, SC and Mr Jeremy S.K. Chan, instructed by Messrs Mayer Brown JSM, for the Plaintiff (Respondent)