FRANCESCA HA v. TSAI KUT KAN AND OTHERS

CACV000016A/1981

Appeal – civil proceedings – action for specific performance of agreement to sell land – action registered as lis pendens – actionbrought by party in his own name – subsequent action for relief brought against same defendant by company alleging that plaintiffin first action was its agent – that action not registered – plaintiff in first action admitting agency – first action dismissedand appeal against that dismissal also dismissed – application for leave to appeal to Privy Council – the order of the Court of Appealdismissing the appeal was an interlocutory and not a final order – leave to appeal refused on the merits.

IN THE COURT OF APPEAL 1981, No. 16
(Civil)

BETWEEN

FRANCESCA HA

Plaintiff
(Appellant)

AND
TSAI KUT KAN

1st Defendant
(1st Respondent)

NEPTUNE REALTY CO. LTD.

2nd Defendant
(2nd Respondent)

LUCIND GARDEN LIMITED

3rd Defendant
(3rd Respondent)

__________

Coram: Sir Alan Huggins, V.-P., Silke & Barker, JJ.A.

Date of hearing: 21 September 1982

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P. :

1. We think that leave to appeal should be refused.

2. On the question whether this was a final or an interlocutory order, whilst, like the English judges, we see the logic in having regardto the effect of the order upon the applicant, we are of opinion that we ought to follow the trend of the modern English authorities,by which it has been held that an order upon an application to strike out an action is an interlocutory order. We are supported inthis view by a decision of the Judicial Committee in Tampion v. Anderson (1794) 48 A.L.J.R. 11, which has been unearthed by Mr Justice Silke. There it was decided that an order staying an action on the ground that it was frivolous,vexatious or an abuse of the process of the court was interlocutory.

21st September, 1982.

Representation:

Swaine, Q.C. & K.H. Woo (Tsang, Chau & Shuen) for Applicant(Plaintiff).

D. Chang, Q.C. & D. Yam (Yung, Yu, Yuen & Co.) for 1st Respondent(1st Deft.)

C. Ching, Q.C. & D. Yam (David Y.Y. Fung & Co.) for 2nd and 3rd Respondents (2nd and 3rd Defendants).