Hong Kong Judgment

Court of Appeal

ONWAY ENGINEERING LTD v. CHINNEY CONSTRUCTION CO LTD

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Source document

01

Holding and result

Leave to appeal to the Court of Final Appeal out of time was refused because the applicant failed to provide an adequate explanation for the delay and failed to identify any arguable point of law under section 32A of the Companies Ordinance; additionally, the primary issues were factual and concurrent findings of fact had been upheld, undermining prospects of a successful appeal.

Court disposition

Application for leave to appeal to the Court of Final Appeal out of time refused

Orders

  • Application for leave to appeal out of time refused

02

Material facts

Parties

Onway Engineering Limited

Plaintiff/applicant Counsel: Mr Kenneth C L Chan instructed by Messrs Rowdget W Young & Co.

Chinney Construction Company Limited

Defendant/respondent Counsel: Mr Peter Clayton SC instructed by Messrs Wong & Fok

03

Procedural history

  1. Posture

    Civil Appeal (application for Leave to Appeal to the Court of Final Appeal) / Application for Leave to Appeal Out of Time Before the Court of Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
Applicant sought leave to appeal out of time; primary explanation for delay was that the client was in the Mainland and that this limited opportunity for conference; applicant suggested an issue under section 32A of the Companies Ordinance but could not articulate the point of law.
Respondent
Respondent submitted there was no sufficient excuse for the delay, that communication with the Mainland did not justify the lateness, and that no identifiable point of law was advanced; noted that the matter was primarily one of fact and concurrent findings of fact had been made which undermined prospects of appeal.

05

Court’s reasoning

  1. 01

    Court of Appeal judgment (Rogers VP)

    Leave to appeal out of time requires an adequate explanation for delay and an arguable question of law

  2. 02

    Court of Appeal judgment (Rogers VP)

    Concurrent findings of fact upheld by appellate courts make further appeal to the Court of Final Appeal unlikely absent a significant question of law

  3. 03

    Court of Appeal judgment (Rogers VP)

    A party asserting a point of law must identify and articulate the legal question with sufficient clarity to justify leave

06

Ratio, limits and disposition

Ratio decidendi

Leave to appeal to the Court of Final Appeal out of time was refused because the applicant failed to provide an adequate explanation for the delay and failed to identify any arguable point of law under section 32A of the Companies Ordinance; additionally, the primary issues were factual and concurrent findings of fact had been upheld, undermining prospects of a successful appeal.

Obiter and limits

  • Communication with the Mainland was not a sufficient excuse for failure to make timely application given available means of communication and travel
  • The court expressed difficulty in discerning any point of law arising under section 32A of the Companies Ordinance from the submissions made

Court disposition

Application for leave to appeal to the Court of Final Appeal out of time refused

  • Application for leave to appeal out of time refused

Source and reliance status

Court of Appeal · 1 June 2007

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Judgment text

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Source document

Court of Appeal

Judgment· 1 June 2007

ONWAY ENGINEERING LTD v. CHINNEY CONSTRUCTION CO LTD

bjbj cacv 402/2005 in the high court of the hong kong special administrative region court of appeal civil appeal no. 402 of 2005 (on appeal from HCCT NO. 10 of 2002)

BETWEEN

ONWAY ENGINEERING LIMITED Plaintiff

CHINNEY CONSTRUCTION

COMPANY LIMITED Defendant Before: Hon Rogers VP, Le Pichon JA and Chu J in Court Date of Hearing: 1 June 2007 Date of Judgment: 1 June 2007

J U D G M E N T Hon Rogers VP: This is an application for leave to appeal to the Court of Final Appeal out of time. Mr Chan, very candidly, has said that he really cannot offer a great deal of excuse, except that his client was in the Mainland. But these days communication with the Mainland is not that difficult. There are all sorts of ways of communicating with the Mainland, even if somebody does not travel down, and it is not that difficult to travel from the Mainland to Hong Kong. The short fact of the matter is that the client left it until it was too late to have a conference to consider the matter and that really is no excuse at all. Having said that, one then looks at what any appeal might be and I have grave difficulties in discerning what the grounds of appeal would be. The matter before this Court was primarily one of fact and this Court upheld the judge below on the question of fact and, therefore, there are now concurrent findings of fact, so that is going to make any appeal to the Court of Final Appeal a little difficult. Apart from that, I regret to say that I am still unable to discern, despite asking Mr Chan, what the point of law is that is supposed to arise on section 32A of the Companies Ordinance. In those circumstances, I consider this application for leave has to be refused. Hon Le Pichon JA: I agree. Hon Chu J: And I agree. (Anthony

Rogers) Vice-President (Doreen Le Pichon) Justice of Appeal (Carlye Chu) Judge of the Court of First Instance Mr Kenneth C L Chan, instructed by Messrs Rowdget W Young & Co., for the Plaintiff/Applicant Mr Peter Clayton, SC, instructed by Messrs Wong & Fok, for the Defendant/Resp 1udk 1udk 2QX[ 2QX[ H; < jFen & 6" ABC-Final (fair)1.dot setup Microsoft Word 9.0 Title Source Erica Microsoft Word Document MSWordDoc Word.Document.8

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Companies Ordinance, s.32A

Legislation

Legislation referenced in the available case record.

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