厦門新景地集團有限公司 Formerly Known As 厦門市鑫新景地房地產有限公司 v. Eton Properties Limited, Eton Properties (Holdings) Limited, Eton Properties Group Limited Formerly Known As Eton Properties (International) Limited, Legend Properties (Xiamen) Company Limited, A Limited Company Incorporated in Hong Kong, Tan Lucio C

FAMV Nos 6 & 7 of 2019

[2019] HKCFA 21

FAMV No 6 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 6 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO 158 OF 2012)

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FAMV No 7 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 7 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO 158 OF 2012)

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DETERMINATION

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Mr Justice Cheung PJ:

FAMV 6/2019

Question 1

1.The legal principles are well established.  The dispute relates to whether the Court of Appeal has applied the principles correctly to the facts of this case.  What the plaintiff says is an “anterior question” has in fact been dealt with by the Court of Appeal as an exception to the primary rules.[1]  We do not grant leave on this question.

Question 2

2.We give leave on this re-formulated question:

“Under the tort of inducing a breach of contract, where the inducement takes the form of the conclusion of a dealing inconsistent with an existing contract, what is the requirement of causation as regards the breach of contract? In particular, where the contracting party is determined to breach the contract with or without the inducement of the defendant, what is the requirement of causation?”

Question 3

3.Similar to Question 1, the law is well settled, and the dispute turns on the facts.  Leave to appeal is refused.

Question 4

4.We give leave on this question.

Question 5

5.We also give leave on this question which is re-formulated as follows:

“Where an agreement for the sale and purchase of shares in a Hong Kong private company is by agreement governed by a foreign law, does that preclude the law of property and the law of trust under Hong Kong law from operating to transfer the equitable title or interest in the shares to the purchaser upon the making of the agreement or upon the agreement becoming specifically enforceable?”

Question 6

6.We give leave on this question under the “or otherwise” limb.

FAMV 7/2019

Question 1

7.We are not prepared to grant leave on the “construction argument” which turns on the scope of the arbitration argument in question.  It raises only a case-specific question.  However, we are prepared to give leave on the “outflanking argument” which is re-formulated as follows:

“Whether the jurisdiction of a Hong Kong court as an enforcement court under a common law action to enforce a Mainland arbitral award is circumscribed or otherwise affected by the statutory regime for enforcement of international awards covered by the New York Convention and Mainland awards; and if the answer is ‘yes’, what should the approach of the court be?”

Question 2

8.We do not think this is reasonably arguable.  With respect, there is a confusion stemming from the failure to recognise that in a common law action for enforcement of a foreign arbitral award, one is not suing on the underlying agreement (which is governed by the choice of law clause), but on the breach of the implied promise to honour the arbitral award, which is a cause of action based on Hong Kong law. By definition, the lex fori applies.  Leave is refused accordingly.

Question 3

9.The pleading requirements have been clearly set out in paragraphs 147 to 154 of the Court of Appeal judgment.  There can be no dispute with its correctness.  Whether the claim has been sufficiently pleaded is fact-specific.  No question of law of great general or public importance arises.   We refuse leave on this question.

Question 4

10.We give leave on this question.

Question 5

11.The law on election between inconsistent remedies is well settled.  What happened in the present case is a question of fact.  No question of law of great general or public importance arises.  We also refuse leave on this question.

Costs

12.Costs be in the cause of the appeal in relation to both applications.

Mr David Joseph QC, Mr Edward Chan SC, Mr Bernard Man SC, Mr Lee Tung Ming, Mr Keith Lam and Mr Justin Ho, instructed by Anthony Siu & Co, for the plaintiff (applicant in FAMV 6/2019; respondent in FAMV 7/2019)

Mr Steven Gee QC, Mr Benjamin Yu SC, Mr Richard Khaw SC and Ms Bonnie Y K Cheng, instructed by Mayer Brown, for the 1^st and 2^nd defendants (1^st and 2^nd respondents in FAMV 6/2019; 1^st and 2^nd applicants in FAMV 7/2019)

Mr Stewart Wong SC and Ms Elizabeth Cheung, instructed by Wilkinson & Grist, for the 3^rd and 4^th defendants (3^rd & 4^th respondents in FAMV 6/2019)

Mr Ronny Tong SC and Ms Kate Poon, instructed by Baker & McKenzie, for the 6^th defendant (5^th respondent in FAMV 6/2019)