CIRCLE ANGLE LTD v. ORCHARD ENTERPRISE (HONG KONG) LTD

CIRCLE ANGLE LTD v. ORCHARD ENTERPRISE (HONG KONG) LTD

Leave to appeal was granted only in respect of the specific issue whether, given the consideration of a draft cancellation agreement and the withholding of completion steps, OEL was entitled to treat CAL as in breach without notice to complete; leave was refused for the other proposed grounds; costs of the leave...

Source-derived case information.

Citation
CIRCLE ANGLE LTD v. ORCHARD ENTERPRISE (HONG KONG) LTD
Parties
Plaintiff: CIRCLE ANGLE LIMITED; Defendant: ORCHARD ENTERPRISE (HONG KONG) LIMITED
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 March 2012
Case Number
DCCJ1252/2011
Procedural Posture
Civil Conveyancing Dispute / Application for Leave to Appeal After Summary Judgment and Dismissal; Prior Applications for Summary Determination and Striking Out
Outcome
Leave to appeal granted limited to a single issue (waiver/notice to complete); leave refused for other grounds; costs of the application ordered in the cause of the appeal with certificate for counsel; previous summary judgment on the defendant's counterclaim and dismissal of the claim remained in place as per the...
Legal Topics
Summary Judgment, Striking Out Pleading, Leave to Appeal, Amendment of Pleading, Waiver, Notice to Complete, Costs
Source Language
en
Contract Property/conveyancing Civil Procedure Summary Judgment Striking Out Pleading Leave to Appeal Amendment of Pleading Waiver +2 more

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Summary, issues, holding and outcome

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Parties

CIRCLE ANGLE LIMITED

Plaintiff

ORCHARD ENTERPRISE (HONG KONG) LIMITED

Defendant

Procedural Posture

Civil Conveyancing Dispute / Application for Leave to Appeal After Summary Judgment and Dismissal; Prior Applications for Summary Determination and Striking Out

Legal Issues

  1. 1 Whether leave to appeal should be granted under section 63A(2) of the District Court Ordinance on grounds of a reasonable prospect of success or in the interests of justice
  2. 2 Whether the proposed amendments introducing waiver and notice to complete defences were sustainable and would afford a defence to the counterclaim
  3. 3 Whether consideration of a draft cancellation agreement and withholding further steps to complete rendered the position still fluid so that the defendant was not entitled to treat the plaintiff as in breach without notice to complete and making time of the essence

Ratio Decidendi

Leave to appeal was granted only in respect of the specific issue whether, given the consideration of a draft cancellation agreement and the withholding of completion steps, OEL was entitled to treat CAL as in breach without notice to complete; leave was refused for the other proposed grounds; costs of the leave application ordered in the cause of the appeal with certificate for counsel.

Court Disposition

Leave to appeal granted limited to a single issue (waiver/notice to complete); leave refused for other grounds; costs of the application ordered in the cause of the appeal with certificate for counsel; previous summary judgment on the defendant's counterclaim and dismissal of the claim remained in place as per the...

Orders

  • Leave to appeal granted limited to the question whether consideration of the draft cancellation agreement and withholding of completion steps meant OEL was not entitled to treat CAL as in breach without giving notice to complete and making time of the essence
  • Leave to appeal refused in respect of the other grounds in the draft notice of appeal