Keen Lloyd Energy Ltd v Bank Of China (Hong Kong) Ltd

Judgment Date06 January 2009
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV36/2008
Subject MatterCivil Appeal
CACV000034A/2008 KEEN LLOYD ENERGY LTD v. BANK OF CHINA (HONG KONG) LTD

CACV 34/2008, CACV 35/2008, CACV 36/2008 & CACV 37/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 34 AND 35 OF 2008

(ON APPEAL FROM HCA NO. 1092 OF 2006)

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BETWEEN

KEEN LLOYD ENERGY LIMITED
(formerly known as KEEN LLOYD INVESTMENTS LIMITED and further formerly known as KEEN LLOYD LIMITED)
Plaintiff
and
BANK OF CHINA (HONG KONG) LIMITED
(formerly known as SIN HUA BANK LIMITED, HONG KONG BRANCH)
Defendant

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 36 AND 37 OF 2008

(ON APPEAL FROM HCA NO. 1299 OF 2004)

----------------------

BETWEEN

KEEN LLOYD ENERGY LIMITED
(formerly known as KEEN LLOYD INVESTMENTS LIMITED and further formerly known as KEEN LLOYD LIMITED)
Plaintiff
and
BANK OF CHINA (HONG KONG) LIMITED (formerly known as SIN HUA BANK LIMITED, HONG KONG BRANCH) Defendant

----------------------

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 9 December 2008

Date of Judgment: 9 December 2008

Date of Handing Down Reasons for Judgment: 6 January 2009

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. I agree with the reasons given by Le Pichon JA.

Hon Le Pichon JA:

2. These were four applications by the plaintiff for leave to appeal to the Court of Final Appeal from orders of this court dated 23 September 2008 dismissing the plaintiff’s appeals from decisions and judgments of Poon J. At the conclusion of the hearing the applications were refused with written reasons to be handed down which we now do.

Background

3. The full background appears in paragraphs 3 to 13 of the reasons for judgment of Rogers VP handed down on 23 September 2008 to which reference should be made. For present purposes, it is only necessary to state that the underlying actions, HCA 1299 of 2004 (“the 2004 action”) and HCA 1096 of 2006 (“the 2006 action”), were actions brought by the plaintiff against the defendant. The plaintiff, the holding company of the Keen Lloyd group of companies, claimed damages against the defendant in respect of alleged misrepresentations regarding the grant of general banking facilities to the group.

4. Poon J heard the defendant’s strikeout summonses in July 2007. After the hearing had been completed but pending the judge’s decision on those summonses, on 21 November 2007, the plaintiff applied to adduce and rely on (1) a letter dated 18 May 1998 from the defendant, then known as Sin Hua Bank Ltd, Hong Kong Branch (“SHHK”) to the Hong Kong Monetary Authority (“HKMA”) and (2) a letter dated 17 July 1998 from the HKMA to SHHK.

5. On 4 January 2008, the judge dismissed the plaintiff’s applications to admit further evidence. On 11 January 2008, the judge struck out the 2004 action and the 2006 action. CACV 34 & 36 of 2008 relate to the judge’s refusal to admit further evidence and CACV 35 & 37 of 2008 relate to the judge’s decision to strike out the two actions.

6. The substantive appeals to this court were dismissed because, irrespective of the representations, the defendant was entitled to withdraw the facilities at any time. In addition, the statements were promises rather than statements of fact, there was no actionable loss pleaded and the claim in the 2006 action was also time-barred....

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