IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 105 OF 2010
(ON APPEAL FROM HCA NO. 595 OF 2008)
Before: Hon Rogers Acting CJHC, Le Pichon JA and Stone J in Court
Dates of Hearing: 12 November and 23 December 2010
Date of Judgment: 23 December 2010
J U D G M E N T
Hon Rogers Acting CJHC:
1. This is an application for leave to appeal to the Court of Final Appeal.
2. The application first came before this court on 12 November of this year. It was supported by a consent summons purporting to consentto leave being given to appeal under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. However, that refers to a liquidated demand and a liquidated demand is one which can be calculated by pure arithmeticon the basis of undisputed figures.
3. The demand in this case by the plaintiff is a calculated amount. It is calculated, in part, on the basis of a figure which thiscourt did not accept and, therefore, this court could not accede to any such application. I would add, at this stage, that thiscourt could not accede to it for two reasons. First of all, this court cannot make an order by consent if it does not consider itan appropriate order to be made; and secondly, it is a matter of jurisdiction and the court cannot exercise a jurisdiction whichit does not have – in other words, exercise a jurisdiction under 22(1)(a) when it does not exist.
4. So when this matter first came before this court on 12 November, the plaintiff was represented by Mr Carolan and the matter waspointed out that this was not a liquidated claim. This clearly took Mr Carolan by surprise and in deference to counsel and to assistthe parties an adjournment was accorded.
5. When the matter came back before this court this morning, the preliminary request by the plaintiff was simply that this applicationshould be dismissed, because, presumably, it was appreciated that it would not be granted. It was pointed out to counsel more thanonce that it would be an abuse of the process of the court to ask this court to dismiss an application without making arguments toit which were proposed to be made to the Court of Final Appeal.
6. When that was pointed out, counsel did attempt to suggest that this was a liquidated claim without putting forward any argument. It was pointed out that clearly the plaintiff’s claim did not fall within the definition of a liquidated claim for the reasonswhich I have already given.
7. I would therefore dismiss this application. I have taken the steps of outlining what has happened so far, so that if an applicationis made to the Court of Final Appeal, that court will be well aware of the absence of any real argument which has been placed beforethis court.
Hon Le Pichon JA:
8. I agree.
Hon Stone J:
9. I also agree with the judgment of the Vice-President.
Mr Paul Carolan, instructed by Messrs Blank Rome, for the Plaintiff/Applicant on 12 November 2010
Mr Eugene Kwok, instructed by Messrs Blank Rome, for the Plaintiff/Applicant on 23 December 2010
Mr Keith Lam, instructed by Messrs Tung, Ng, Tse & Heung, for the 1st to 3rd Defendants/Respondents