The Bo Fong Studio v Henry G Leong Estates Ltd

Judgment Cited authorities (1) Cited in Precedent Map Related
Judgment Date31 March 1948
Year1948
Judgement NumberCACV3/1948
CourtCourt of Appeal (Hong Kong)
CACV000003/1948 THE BO FONG STUDIO v. HENRY G LEONG ESTATES LTD

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 3 of 1948

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

(O.J. Action No.305-307/47)

BETWEEN
THE BO FONG STUDIO Appellants
(Defendants)

AND
HENRY G. LEONG ESTATES LTD. Respondents
(Plaintiffs)

Coram: Mr. Justice E.J. Williams - President, Mr. Justice T.J. Gould - Appeal Judge, Mr. Justice J. Reynolds - Appeal Judge.

Date of Judgment: 31 March 1948

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

DECISION

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1. This is a Notice of Motion (Motion No.3) for leave to appeal to His Majesty the King in Council from a decision of the Full Court of the 11th March refusing a stay of execution of a judgment dated the 1st March of Gould J. until such time as an appeal from that judgment should be heard.

2. By rule 2(a) of the Rules for Appeals to the Privy Council, an appeal as of right lies under certain conditions. By rule 2(b) an appeal is at the discretion of the Court when other conditions are fulfilled. Rule 2 reads:

"2. Subject to the provisions of these Rules, an appeal shall lie -
(a) as of right, from any final Judgment of the Court, where the matter in dispute on the appeal amounts to or is of the value of $5,000 or upwards, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $5,000 or upwards; and
(b) at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to he submitted to His Majesty in Council for decision."

3. Counsel for the appellant submitted on the authority of Standard Discount Company v. Otard de la Grange 3 C.P.D. 67, that, though the order of the Full Court refusing to stay execution was interlocutory in form, it was in effect final in that it became effectual against the appellant, no further step being required.

4. The Court cannot agree with this submission. In paragraph 508 of 19 Hailsham p.206, the difference between an interlocutory and a final judgment is explained. Clearly the order of Gould J. giving judgment to the respondents was a final order. In the words of Brett L.J. (p.71) in the Standard Discount Co. (supra) the judgment was 'the last step which must be taken in order to fix the status of the parties, with respect to the matter in dispute'. The order of the Full Court refusing a stay of execution did not decide or affect in any way the status of the parties....

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