IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 812 OF 2000
(ON APPEAL FROM HCA NO. 9042 OF 1998)
Coram: Mayo V-P, Keith JA and Stock JA in Court
Date of Hearing: 19 June 2001
Date of Judgment: 19 June 2001
J U D G M E N T
Keith JA (giving the judgment of the Court):
1. This is an application by the Defendant for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). The relevant facts appear sufficiently from the judgment of the Court of Appeal of 15 March 2001.
2. In Johnson v. Agnew  AC 367, the House of Lords decided that there may well be circumstances in which it is open to the contracting party not in breach of contractto revoke his original election, i.e. his election to affirm the contract and seek specific performance of it, and instead to seekdamages for the other party’s breach of the contract. One of those circumstances was identified in Safehaven Investments Inc. v. Springbok Ltd. (1996) 71 P. & C. R. 59, namely where the innocent party has affirmed the contract and the party originally in breach continues to be in repudiatory breachof it. The correctness of these principles is not disputed in the questions of law which the Defendant wishes to be referred to theCourt of Final Appeal for decision. It is true that Mr John Mullick for the Defendant has today said that these principles have aparticular application in Hong Kong due to the volatility of the property market, but the correctness of the principles themselvesis not in doubt.
3. It is important to note that clause 31 of the sale and purchase agreement (“the agreement”) did not merely permit the Plaintiff toinspect the flat before completion: it imposed a duty on the Defendant to allow the Plaintiff to do so. Thus, the only question whichthe proposed appeal raises, when properly analysed, is whether, after the Plaintiff had elected to affirm the contract, the Defendant’sfailure to inform the Plaintiff that he could inspect the flat after all without having to pay an additional sum constituted a continuingbreach of clause 31 of the agreement. We regard the answer to that question as turning on the particular facts of the present caserather than on the determination of a question of law of great general or public importance. For that reason, this application forleave to appeal to the Court of Final Appeal must be dismissed.
Ms Winnie Chan, instructed by Messrs Ng, Tam, Ko & Chan, for the Plaintiff.
Mr John Mullick and Mr Y. C. Lee, instructed by Messrs Louis K. Y. Pau & Co., for the Defendant.