Incorporated Owners of Hip Wo House v. Gallant King Development Ltd

cacv 429/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 429 of 2006

(on appeal from HCCW NO. 248 of 2006)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing : 7 September 2007

Date of Judgment : 7 September 2007

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J U D G M E N T

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Hon Rogers VP:

1.These are two applications.  The first one is to reopen the hearing of this appeal.  The basis upon which that is put is twofold.  First, it is said that this Court decided the case on a point that was not in the Respondent’s notice.  However, it is accepted that the point was raised by the Court in the course of argument.  The fundamental issue is, quite simply, that there was an outstanding order for costs which had been made in the sum of $440,000, and there had been a statutory demand which had not been paid.

2.It also was said that this Court had not ruled on the application to admit further evidence.  This Court’s practice when there is an application to admit further evidence is, of course, that it will have pre-read that evidence before it comes into court.  Rather than go into lengthy arguments at the beginning of an appeal which would normally result in a waste of time, this Court generally treats such evidence on a de bene esse basis and then comes to a conclusion on the case.  If it is necessary, at the end of the case, to argue as to whether the evidence should or should not be admitted, then the Court will hear argument.

3.In this case, the evidence that was sought to be admitted was irrelevant to the issue as this Court saw it.  Therefore, this Court treated that evidence as being in, but it did not formally give leave to deal with it.

4.Then there is the application for leave to appeal to the Court of Final Appeal.  It is based upon section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  It is said, twofold, first that there are questions which are set out in the application for leave to appeal which are of great or general public importance.  This Court has examined those with counsel this morning.  These amount to nothing.  At best, one of the questions amounts to the question that this Court had decided this case wrongly, as this Court disagreed with the judge’s conclusion that there was a bona fide dispute of substance in relation to the debt.  As this Court pointed out in paragraph 12 of the judgment of Le Pichon JA:  “To hold that the debt owing as a result of that court order is substantially disputed is tantamount to denying effect to a valid existing court order and that, in my view, cannot be correct.”  That really is the basis of the whole case.

5.The other grounds on which it was suggested that there are matters of great general public importance appear to me to be misplaced entirely.

6.As regards the final point that leave should be given on the “or otherwise” basis, I would simply say that I see absolutely no ground for doing so.  Generally speaking, this Court does not grant leave on the “or otherwise” basis except in very exceptional circumstances, since it is a matter for the Court of Final Appeal as to whether a case should be heard by them on that footing.

7.In those circumstances, these applications should be refused.

Hon Le Pichon JA:

8.I agree.

Hon Stone J:

9.I also agree.

Mr Lee Yee-hung, instructed by Messrs W K To & Co., for the Petitioner/ Respondent

Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the Respondent/Applicant