Lux Locations Ltd v Yida (Antigua and Barbuda)

Hilary Term

[2023] UKPC 3

Privy Council Appeal No 0010 of 2022

JUDGMENT

Lux Locations Ltd (Appellant)

v

Yida Zhang (Respondent) (Antigua and Barbuda)

From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua & Barbuda)

before

Lord Lloyd-Jones

Lord Leggatt

Lord Stephens

Lady Rose

Lord Richards

JUDGMENT GIVEN ON

31 January 2023

Heard on 5 December 2022

Appellant

Thomas Roe KC

Andrew O’Kola

Daniel Goldblatt

(Instructed by OMO Law Chambers (Antigua))

Respondent

Barry Gale KC

David Dorsett

James Gale

(Instructed by Axiom DWFM Ltd (West End))

LORD LEGGATT:

 Introduction

1. This appeal raises questions about the proper approach to the grant of a default judgment for a remedy other than an award of money where the relevant procedural rule says that judgment “shall be in such form as the court considers the claimant to be entitled to on the statement of claim.” An initial question is whether such a default judgment can be appealed at all or whether, as the Court of Appeal held in this case, the only means of challenging it is to apply to the High Court to set the judgment aside.
2. To put the claim advanced in the statement of claim in context, it is necessary to outline the now lengthy history of litigation between the parties.

The parties and the agency agreement

3. The appellant, Lux Locations Ltd (“Lux”), is an estate agency which was engaged by the respondent, Mr Yida Zhang, an international investor of Chinese nationality, to assist in buying a large parcel of land (around 6 km² in Antigua. Lux was engaged on written terms that, if Mr Yida or an affiliate acquired the land, Mr Yida would pay Lux a commission equal to 9% of the purchase price. The agency agreement also stated that Lux would be responsible for paying, out of its commission, any other commissions pre-agreed with Lux to facilitate the sale. Lux had agreed to pay such a commission, equal to 4% of the purchase price, to an architect, Johann Hesse, in return for his assistance in lobbying the Government for approvals needed for the purchase.

The first action

4. Mr Yida’s company, Yida International Investment Antigua Ltd (“Yida Ltd”), acquired the land in August 2014 at a price of US $60m. Mr Yida did not, however, pay Lux its commission. His associate, Mr Kenneth Kwok, wrote to Lux saying that foreign exchange was not available in China to pay the commission and proposing a new agreement under which Lux’s right to be paid commission would be replaced by an exclusive right to act as estate agent for the sale of any of the land. When Lux rejected this proposal, an alternative proposal was made to link the payment of the commission to the sale of land by Mr Yida. Lux rejected this proposal too and brought an action (“the first action”) suing Mr Yida for the commission of US $5.4m (9% of the US $60m purchase price) payable under the agency agreement.
5. Mr Yida defended the…