Totalcorp (Nominees) Limited v. Hong Kong Sai Kung Ngong Wo Resort Development Limited

FAMV No 32 of 2022

[2022] HKCFA 17

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 32 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO 72 OF 2020)

____________________

____________________

_________________________

DETERMINATION

_________________________

Mr Justice Lam PJ:

1.We are satisfied that the following two questions involved in the present case are of great general or public importance and ought to be submitted to the Court for decision:

(1)  Whether BS Lyle Ltd v Chappell [1932] 1 KB 691 (followed in New Japan Securities International (HK) Ltd v Lim Yiong Lin [1987] 3 HKC 153 and Honip Credit Ltd v Leung Tak Sing Paul [2020] HKCA 879) lay down a rule of law or a rule of construction that whenever there is an extension of a loan a new loan capitalising the accrued interest comes into existence?

(2)  When a new loan is knowingly made for the purpose of discharging an existing loan which contravenes Section 24 of the Money Lenders Ordinance Cap 163 (“MLO”), is the new loan tainted by illegality at common law or does it fail for want of consideration notwithstanding that the effective interest rate under the new loan does not contravene that section?

2.We decline to grant leave to appeal on the other questions raised in the Notice of Motion and the application for leave on the “or otherwise” limb.  In particular, the meaning of money-lender under the MLO is well settled and the applicant’s intended challenge is not arguable in light of the concurrent finding by the courts below.  Likewise, the question as to the applicability of Order 88 of the Rules of the High Court Cap 4A is not reasonably arguable.  

3.We grant leave to appeal accordingly.

4.The appeal will be listed for hearing on 1 December 2022.

Mr Kenneth CL Chan and Mr Roland Lau, instructed by Kong & Tang, for the defendant (applicant)

Mr Victor Dawes SC and Mr Joshua Chan, instructed by MinterEllison LLP, for the plaintiff (respondent)