Read the full judgment text of CACV 86/2019 on BabelCite. This Court of Appeal judgment was delivered on 29 January 2021 before Hon Lam VP and Chu JA.
Civil procedure – stay of execution pending appeal – application by 2nd Defendant – Plaintiff obtained judgment from L Chan J declaring 1st Defendant held two properties as bare trustee for Plaintiff since 13 September 1985 and ordering assignment – alternatively declaration that Plaintiff had extinguished title by adverse possession under s 17 and s 7(2) of the Limitation Ordinance (Cap 347) – whether arguable grounds of appeal with reasonable prospect of success – whether appeal would be rendered nugatory if no stay granted – principles in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 and Bright Gold Ltd v Mega Well Development Ltd [2019] HKCA 1440 – broad-brush assessment – whether stay may be granted by showing strong grounds or that appeal would be nugatory – balancing of prejudice – whether injunctive and declaratory relief renders appeal nugatory – conveyancing or transactional costs recoverable if appeal succeeds. Civil procedure – leave to amend Notice of Appeal – applicable principles – untrammelled discretion of court – exercise of discretion with regard to Order 1A Rule 2(1)(a) of the Rules of the High Court (Cap 4A) – whether Hong Kong Civil Procedure 2021 commentary at paragraph 59/7/2 represents exhaustive grounds for refusal – arguability as relevant consideration – court will not act in vain – new arguments not raised at trial cannot be raised for the first time on appeal – authorities including To Pui Kui v Ng Kwok Piu [2014] 5 HKLRD 103, Ng Kwok Piu Philip v To Pui Kui [2020] HKCA 724, Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, Re Qin Jun [2018] HKCA 527 and Chan Chi Wai v Chan Sau Wah [2019] HKCA 584 – requirement to identify palpable errors in grounds of appeal under Practice Direction 4.1 – grounds must be concise and focused – modern appellate approach in China Gold Finance Ltd v CIL Holdings Ltd and Gotland Enterprises Ltd v Kwok Chi Yau. Outcome: Stay of execution dismissed; leave to amend granted in part (paragraphs (1) to (3) and (7) to (10) of proposed amendments allowed, remaining amendments refused as unarguable, raising new points not argued below, or failing to identify palpable error); costs of HK$71,715 awarded to Plaintiff for stay application and HK$74,800 for amendment application, both payable forthwith; Defendants to file and serve Amended Notice of Appeal with permitted amendments within 7 days.
Legal issues: Whether to grant stay of execution pending appeal · Whether to grant leave to amend the Notice of Appeal
Outcome: Application for stay of execution dismissed; application for leave to amend the Notice of Appeal granted in part (paragraphs (1) to (3) and (7) to (10) of the proposed amendments allowed, the rest refused).
Cited by 11 cases · Cites 14 cases