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)

____________

BETWEEN

FIRST LASER LIMITED
(第一激光有限公司)

Plaintiff

and
FUJIAN ENTERPRISES (HOLDINGS) COMPANY LIMITED
(華閩(集團)有限公司)
1st Defendant
JIAN AN INVESTMENT LIMITED 2nd Defendant

____________

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:-

“(7) the learned judge ought to have found and held in favour of the Plaintiff that the Defendants are estopped from denying thevalidity and effect of the First Laser Agreement and/or the Plaintiff’s interest to and beneficial ownership of 51% of the sharesof 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 bepaid forthwith to the Defendants. A gross sum assessment skeleton bill of costs is to be provided.

(PETER CHEUNG)
JUSTICE OF APPEAL
(WALLY YEUNG)
JUSTICE OF APPEAL
(MARIA YUEN)
JUSTICE OF APPEAL

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)