PENTA INVESTMENT ADVISERS LTD v. ALLIED WELI DEVELOPMENT LTD (FORMERLY KNOWN AS HENNABUN CAPITAL GROUP LTD)

CACV 222/2014
AND
CACV 35/2015
(HEARD TOGETHER)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 222 OF 2014 AND 35 OF 2015

(ON APPEAL FROM HCA NO. 1656 OF 2012)

________________________

BETWEEN
PENTA INVESTMENT ADVISERS LTD Plaintiff
and
ALLIED WELI DEVELOPMENT LIMITED
(formerly known as HENNABUN CAPITAL GROUP LIMITED)
Defendant

________________________

Before : Hon Cheung, Yuen JJA and Au J in Court

Date of Hearing : 11 December 2015
Date of Decision : 11 December 2015

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D E C I S I O N
____________________

Hon Cheung JA (giving Decision of the Court) :

1. The defendant applies for leave to appeal to the Court of Final Appeal against our judgment of 23 July 2015.

2. Both limbs of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are relied upon.

3. In respect of the great general or public importance limb, the following two questions are formulated :

1) Where despite a repudiatory breach of contract, which in the present case was the defendant’s refusal to issue an instructionfor the disposal of the Disposal Shares, the plaintiff was still able to and did procure a disposal of the Disposal Shares withoutthe need for any prior instruction from the defendant, can it be said that such a breach of contract caused any loss to the plaintiff?

2) On the true construction of a Deed where the plaintiff was only entitled to claim a Guarantee Amount if and to the extent thatit had suffered some economic loss as a result of itself acquiring and still holding some Disposal Shares as at a certain date, ifthe plaintiff had not acquired any Shares, can it be said that he had suffered any loss?

4. These two questions purportedly arise from the two grounds of appeal pertaining to the judgment on damages which we rejected inparagraphs 6.6 to 6.13 of our judgment. These two questions are plainly fact specific, unique to the dispute in question and thegreat general or public importance point is simply not engaged.

5. The defendant also relies on the ‘or otherwise’ limb. The defendant simply has not satisfied the high threshold for obtainingleave under this limb. In any event, the practice of this Court is to leave this matter to be considered by the Court of Final Appealitself.

6. Accordingly the application is refused.

7. We will order costs of the application be to the plaintiff on an indemnity basis to be taxed if not agreed. The reason for orderingindemnity costs is because the defendant insisted on having an oral hearing despite the plaintiff agreeing to the Court’s suggestionto have the matter dealt with on paper. At the hearing the defendant did not advance any oral arguments and relied on what had alreadybeen contained in its written submissions. This made the holding of an oral hearing totally meaningless and a complete waste oftime and costs.

(Peter Cheung) (Maria Yuen) (Thomas Au)
Justice of Appeal Justice of Appeal Judge of the Court of
First Instance

Mr Charles Manzoni SC, instructed by Linklaters, for the plaintiff

Mr Minju Kim, instructed by Lam & Co., for the defendant