Read the full judgment text of CACV 139/2015 on BabelCite. This Court of Appeal judgment was delivered on 1 August 2018 before Lam VP, Kwan JA, McWalters JA.
Civil appeal – striking out corporate appellant – leave to raise new grounds of appeal – appellate review of findings of fact – corporate governance dispute – United Muslim Association of Hong Kong (UMAH) – validity of 2010 AGM and 2012 AGM – membership disputes – Notice to Act in Person – Order 5 Rule 6(2) RHC – Order 59 Rule 3 RHC – Order 67 Rule 6 RHC – Practice Direction 4.1 – skeleton submissions – non-compliance – waiver of grounds – Ladd v Marshall – Flywin principle on fresh points – indemnity costs – the 2nd-7th Plaintiffs challenged the validity of the existing Council of UMAH and the 2012 AGM, alleging invalid memberships, no valid quorum at the 2010 AGM, and improper election of council members – Recorder T Cheng SC dismissed the claims on 14 May 2015 – Notice of Appeal filed 15 June 2015 naming UMAH as 1st Plaintiff appellant – held, UMAH as a corporate body could not litigate without a solicitor and no leave was obtained under Order 5 Rule 6(2) RHC; the 2nd-7th Plaintiffs had no authority to instruct solicitors for UMAH; Notice to Act in Person signed only by 2nd Plaintiff was ineffective – UMAH struck out as a party and bound by the judgment below – held, leave under Order 59 Rule 3(3) RHC to raise new grounds not in the notice of appeal was refused where the 2nd Plaintiff sought to rely on an application form (C436) never deployed at trial, and on section 569 of the Companies Ordinance and the resignation of Mr Cassim Hussain, arguments neither pleaded nor run below; section 569 was not in the old Companies Ordinance (Cap 36) – held, Ground 4 (3rd Plaintiff's membership) was without merit; the judge properly found the 3rd Plaintiff ceased to be a member upon leaving employment in the late 1990s and his 10 January 2010 form did not validly restore membership – held, Grounds 1-3, 5-9 were without merit: assessment of credibility is for the trial judge; no palpable error was shown; Ground 5 misrepresented the judge's remark on the parent-teacher association; Ground 6 misunderstood the judge's approach to limited evidence; Grounds 7-8 complained of trial lawyers' omissions binding the party; Ground 9 raised new fact-sensitive allegations of forgery and section 569-type points not raised below – non-compliance with Practice Direction 4.1 on skeleton submissions may be treated as waiver of grounds (Re Mudannayakalage Chaminda Pushpa Kumara; Re Manjit Kaur; Re Miha Md Limon; Re Ali Arshad; Re SK Sarf Araj) – appeal dismissed with costs nisi against the 2nd-7th Plaintiffs in favour of the Defendants on an indemnity basis.
Legal issues: Proper joinder of UMAH as appellant · Leave to raise new grounds on appeal · Challenge to finding that 3rd Plaintiff ceased to be a member (Ground 4) · Challenge to other factual findings (Grounds 1, 2, 3, 5, 6, 7, 8 and 9)
Outcome: Appeal dismissed; UMAH (1st Plaintiff) struck out as a party and bound by the judgment below.
Cited by 228 cases · Cites 13 cases