廈門新景地集團有限公司 Formerly Known As 廈門巿鑫新景地房地產有限公司 v. Eton Properties Ltd and Others

CACV 235 /2024, [2026] HKCA 1149

On appeal from [2024] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 235 OF 2024

(ON APPEAL FROM HCCL NO 13 OF 2011)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 12 December 2025 we handed down our judgment (“CA Judgment”; [2025] HKCA 1119), dismissing the appeal of the 1^st and 2^nd defendants^[1] against the judgment of Mimmie Chan J dated 14 May 2024 in the assessment of damages after an eight-day hearing ([2024] HKCFI 1291) and her two further rulings on 9 September 2024 and 15 October 2024 (collectively “CFI Judgment”).

2.The defendants filed a notice of motion on 9 January 2026 for leave to appeal to the Court of Final Appeal.  On 29 April 2026, we handed down our judgment ([2026] HKCA 888) refusing to grant leave on any of the questions framed by the defendants’ new legal team and dismissing the notice of motion.  The arguments on the minimum performance principle and collateral benefits were not raised at the trial or on appeal.  We took the view that the contentions now sought to be made in the intended appeal have not been pleaded or raised before the judge, and the new allegation of uncertainties as to the nature and extent of the resulting performance if the defendants had complied with the Implied Promise is fact-sensitive and caught by the “state of the evidence” bar in the Flywin doctrine.  Furthermore, under the second aspect of the Flywin doctrine being the “not considered on intermediate appeal” hurdle, it is only in the most exceptional circumstances that the Court of Final Appeal will entertain an appeal on a new issue, not fully explored and argued below, when it involves a major development of the law.  We therefore followed the well-established practice and declined to grant leave to appeal, leaving it to the Appeal Committee to determine if there are most exceptional circumstances to warrant the granting of leave despite the hurdle of “not considered on intermediate appeal”.

3.There is an outstanding application before us, being the defendants’ summons issued on 9 January 2026 (“CA Stay Summons”) for stay of execution of the CFI Judgment pending the determination of the defendants’ intended appeal against the CA Judgment to the Court of Final Appeal, alternatively pending the determination of the application to the Court of Appeal for leave to appeal to the Court of Final Appeal by notice of motion filed on 9 January 2026 and, if leave is refused by the Court of Appeal, pending the determination of the leave application by the Appeal Committee.  It is proposed in the CA Stay Summons that stay of execution be granted conditional upon the defendants maintaining HK$50 million (or its equivalent in RMB or US$) in a bank account in Hong Kong or such condition as the court thinks fit.

4.On 29 January 2026, I made an order by consent granting an interim stay of execution of the CFI Judgment until the determination of the CA Stay Summons, upon the defendants’ undertaking to pay into court US$5,290,000 by 2 February 2026, their compliance with this undertaking, and upon the plaintiff’s undertaking to withdraw the statutory demands dated 13 January 2026 within one day after being served with a notice of payment of the said sum into court.  The defendant’s undertaking has been complied with.

5.The parties have filed evidence in respect of the CA Stay Summons and lodged their respective submissions.

6.By letter dated 7 May 2026, the defendants’ solicitors informed the court that they intend to file an application for leave to appeal against the CA Judgment with the Appeal Committee and that they maintain their position in the CA Stay Summons there be a stay of execution of the CFI Judgment pending the determination of their intended appeal to the Court of Final Appeal, alternatively pending the determination of the leave application by the Appeal Committee.  If this court dismisses the CA Stay Summons based on its dismissal of the notice of motion dated 9 January 2026, they submitted that a short interim stay be granted until the determination of an application by them to a single judge of the Court of Final Appeal for a stay of execution, provided that such an application be taken out within 14 days from the determination of the CA Stay Summons and be proceeded with expeditiously^[2].

7.The defendants have since applied to the Court of Final Appeal for leave to appeal against the CA Judgment (FAMV 68/2026).  The application will be heard by the Appeal Committee on 26 August 2026.

8.This is not the first occasion the defendants apply for stay of execution of the CFI Judgment pending appeal.  Orders have been made in this regard by Mimmie Chan J on 21 March 2025^[3] and by this court (affirming Mimmie Chan J’s stay decision) on 18 June 2025^[4].  We do not propose to recite the history.  The applicable principles, which are not controversial, were set out in the two stay decisions and will not be repeated.  As a result of the stay decisions, prior to the CA Judgment, RMB 179,999,656.24 was paid out to the plaintiff on 3 July 2025 in partial settlement of the judgment sum, and, as a condition for stay of execution pending the appeal in the Court of Appeal, there remained in court RMB 167,064,413.97 (RMB 347,064,070.21^[5] less RMB 179,999,656.24, excluding interest).

9.The defendants’ proposal of the condition for the present stay application is for RMB 167,064,413.97 to remain in court plus the maintenance of an additional HK$50 million (or its equivalent in RMB or US$) in a Hong Kong bank account as security.  The HK$50 million is the defendants’ estimate of post-judgment interest on RMB 347,064,070.21 until 3 July 2025 and on RMB 167,064,413.97 from 4 July 2025 to 31 December 2026^[6], on the premise that 31 December 2026 is a reasonable estimate by which time the intended appeal (if leave be granted) would have been determined substantively by the Court of Final Appeal.  The defendants stated that they are prepared and able to provide additional security as may be required by the court for the stay if granted, in compliance with section 26(3) of the Court of Final Appeal Ordinance, Cap 484^[7].

10.The CA Stay Summons is opposed by the plaintiff.  It was submitted that if the notice of motion for leave to appeal is dismissed, the CA Stay Summons must be dismissed and no stay of execution should be granted pending the determination of the intended leave application by the Appeal Committee.  Alternatively, if a further stay of execution is to be granted, it should be on condition that: (1) a further sum of RMB 90 million (representing 25% of the judgment sum) out of the amount paid into court by the defendants (RMB 347,064,070.21) be released and paid out to the plaintiff within 14 days; and (2) HK$8,843,800 (HK$50 million less US$5,290,000 paid into court by the defendants in January 2026) be paid into court within 14 days.  The condition in (1) is to reflect the fact that the defendants have lost twice (before the judge and in the Court of Appeal), in carrying out the balancing exercise in imposing conditions for stay of execution.  The condition in (2) is to provide the plaintiff with good and sufficient security.  The defendants’ proposal of maintaining an amount in a bank account to cover the post-judgment interest is insufficient as the plaintiff has no effective means of verifying whether the amount remains in the bank account at all material times, such amount may be withdrawn immediately on expiry of the stay, and the defendants may create an incumbrance over the bank balance.

11.In dismissing the notice of motion for leave to appeal, we have not formed any view if there is an arguable appeal.  If an arguable appeal is made out, for the reasons given in the two previous stay decisions, it would have been appropriate to grant a stay of execution on condition.  We have regard to the fact that the leave application is to be heard by the Appeal Committee in a couple of months.  Rather than granting an interim stay until the stay application is to be considered by a single judge of the Court of Final Appeal, we think it appropriate in these circumstances to grant a stay of execution pending the determination of the leave application by the Appeal Committee.  In view of the relatively short duration of the stay, we do not propose to alter the condition for stay.  So the stay is upon the condition that the amount paid into court by the defendants, calculated by their counsel at RMB 203,566,237.60, is to remain in court until the determination of the leave application by the Appeal Committee.

12.For the costs of the CA Stay Summons, we make an order that such costs be in the cause of the application for leave to appeal in the Court of Final Appeal.

Mr Bernard Man SC, Mr James Man and Mr Jonathan Ng, instructed by Anthony Siu & Co, for the Plaintiff (Respondent)

Mr Christopher Chain SC, Mr Michael Lok and Ms Tinny Chan, instructed by Baker & McKenzie, for the 1^st and 2^nd Defendants (Appellants)