Read the full judgment text of CAMP 46/2019 on BabelCite. This Court of Appeal judgment was delivered on 23 August 2019 before Kwan VP and Cheung JA.
Company law – unfair prejudice petition – Companies Ordinance (Cap 622) ss.724 and 725 – interlocutory injunction to restrain sale of company property – renewed application for leave to appeal under High Court Ordinance (Cap 4) s.14AA – whether intended appeal has reasonable prospect of success – principles governing appellate review of discretionary decisions – six grounds of appeal: (1) delay in applying for injunction – (2) appropriate merits threshold – (3) preservation of status quo – (4) assessment of merits – (5) adequacy of damages as remedy – (6) balance of convenience – Court of Appeal's function on review of discretion – Yau Tong Marine Lot Nos 2, 3 and 4 owned by Fonfair Company Limited as sole material asset – quasi-partnership between two Leung brothers – prior misconduct of YT excluding Harbour Front from management until remedied – interlocutory injunction granted on 26 November 2018 by Deputy High Court Judge Kenneth Wong restraining actual sale or disposal of property pending determination of unfairly prejudicial conduct petition – newspaper advertisements for public tender on 2 October 2018 – six-week delay in applying for injunction acceptable in interlocutory injunction context – 'likely to succeed at trial' threshold applies only where injunction would dispose of action finally – serious issue to be tried or good arguable case test applicable – injunction did not grant Harbour Front substantive right to participate in management – Harbour Front showed good arguable case of unfair prejudice based on steps taken since Harris J's 2018 hearing – damages not adequate remedy for right of equal participation in management which is not readily quantifiable in money terms – Yau Tong Property has special and unique family value as last piece of inherited land – statement of Rogers VP in 2008 CA Judgment was obiter and not binding – balance of convenience favoured limited injunction – all six grounds of appeal without merit – application for leave to appeal dismissed – order under Order 59 rule 2A(8) that no party may request oral hearing inter partes – costs ordered against YK, summarily assessed at HK$112,156 (reduced from HK$152,956 claimed) – costs order nisi and gross sum assessment to be made absolute if no application for variation within 14 days.
Legal issues: Whether delay in applying for interlocutory injunction bars relief · Applicable merits threshold for interim injunction disposing of part of the substantive claim · Whether the injunction preserved the status quo · Whether Harbour Front showed a sufficiently serious issue to be tried · Whether damages are an adequate remedy for exclusion from management · Whether the balance of convenience favoured granting the injunction
Outcome: Application for leave to appeal dismissed; YK's renewed application refused.
Cited by 24 cases · Cites 7 cases