Great Future International Ltd & Ors v Sealand Housing Corporation & Ors

A renewed application for permission to appeal after a lengthy liability trial failed because the proposed grounds disclosed no real prospect of success. An appellate court should not interfere with a trial judge’s factual findings, particularly findings based on witnesses and contemporaneous documents, unless the judge was plainly wrong. Review of discretionary refusals to adjourn or admit late evidence is similarly limited. The relevant question on an adjournment application is the position as it appeared when the application was made, not later events during the trial. A party seeking an extension of time must explain the delay; an attempt to challenge an interlocutory ruling only after the trial has concluded and judgment has gone against the party will not ordinarily justify an extension.

The defendants sought renewed permission to appeal against orders and rulings of Lightman J in proceedings concerning investments in a Shanghai residential and golf-course development. After a trial on liability, the judge found breaches of warranty and fraudulent misrepresentation arising from representations that land instalments had been paid.

The application challenged the refusal of an adjournment, the exclusion of late evidence, findings concerning Chinese law and novation, and factual findings supporting fraud. The central questions were whether time should be extended for challenges to the 29 June and 12 July 2001 rulings and whether any proposed ground had a real prospect of success.

Permission to appeal was refused. Extensions of time were refused in relation to the refusal of an adjournment on 29 June 2001 and the exclusion of evidence on 12 July 2001. The order was directed to lie in the office for seven days.

1. Adjournment and delay. The correctness of refusing an adjournment had to be assessed by reference to the circumstances as they appeared when the application was made, rather than subsequent events during the trial. The defendants knew of the possibility of an appeal, failed to appeal within the prescribed time, and offered no adequate explanation for the delay. There was no real prospect of showing that the judge’s exercise of discretion was reviewable on appeal.
2. Appellate review. An appellate court should be guided initially by the trial judge’s judgment and cannot form a reliable overall view by selectively examining transcript passages. It will not interfere with findings made after an extended trial involving oral evidence unless the judge was plainly wrong. The judge had relied on contemporaneous documents, signed documents and the evidence of Mr Bao, and no proper basis for displacing those conclusions had been shown.
3. Late evidence. Admission of late evidence was a matter for the trial judge’s discretion. Intervention required a showing that the decision was plainly wrong. The evidence of Mr Xu had not been verified, and the evidence of Mrs Chen had been produced late without adequate explanation and contrary to directions. Neither exclusion disclosed a real prospect of success.
4. Substantive findings. The suggested evidence about golf-club memberships and alternate consideration did not establish that Huaxia had accepted a binding arrangement in substitution for the unpaid instalments. The later existence of memberships did not prove acceptance in 1999. The challenges to the findings concerning fraud, novation and Chinese law therefore provided no sufficient basis for permission.

• Court of Appeal (Civil Division): Arden LJ refused extensions of time and renewed permission to appeal. The order was to lie in the office for seven days.
• Queen’s Bench Division: Lightman J conducted a trial on liability and, on 2 November 2001, found breaches of warranty and fraudulent misrepresentation. Earlier rulings on 29 June 2001 refused an adjournment and on 12 July 2001 excluded late evidence.