Ngai Few Fung v. Cheung Kwai Heung
Read the full judgment text of CACV 147/2007 on BabelCite. This Court of Appeal judgment was delivered on 31 January 2008 before Cheung JA, Yam J.
Civil procedure – appeal – leave to appeal to Court of Final Appeal – section 22(1) of the Court of Final Appeal Ordinance (Cap. 484) – whether judgment is a final judgment involving a claim of $1,000,000 or involves issues of general public importance – 'applications test' – strike-out application dismissed – costs – variation of provisional costs order – costs follow the event. The defendant had applied to strike out the plaintiff's statement of claim and failed, and her appeal to the Court of Appeal was dismissed on 7 December 2007. She then sought leave to appeal to the Court of Final Appeal and variation of the provisional costs order. Applying the 'applications test' in Sam Woo Bore Pile Foundation Limited v. China Overseas Foundation Engineering Limited (unreported FAMV 21/2007), the Court of Appeal held that the judgment was not a final judgment because the merits of the plaintiff's claim still had to be resolved at final determination, so the determination of the strike-out application would not finally dispose of the action or the relevant issue whichever party succeeded. The court further held that the case did not raise matters of great general or public importance, and dismissed the application for leave to appeal. On the variation of costs, the court applied the principle that costs follow the event and dismissed the defendant's application for no order as to costs, leaving in place the provisional order that the defendant pay the plaintiff the costs of the appeal. Outcome: application for leave to appeal dismissed with costs to the plaintiff; variation of costs order dismissed.
Legal issues: Leave to appeal to the Court of Final Appeal under s.22(1) Cap. 484 · Variation of provisional costs order
Outcome: Application for leave to appeal to the Court of Final Appeal dismissed; application to vary the provisional costs order dismissed. The defendant must pay the plaintiff the costs of the appeal.
Cited by 4 cases · Cites 1 case
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CACV 147/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 147 OF 2007 (ON APPEAL FROM HCMP 1186 OF 2006) ---------------------
--------------------- Before : Hon Cheung JA and Yam J in Court Date of Hearing : 30 January 2008 Date of Decision : 31 January 2008 --------------------- D E C I S I O N --------------------- Hon Cheung JA (giving decision of the Court) : Leave to appeal 1.This Court dismissed the defendant’s appeal on 7 December 2007. The defendant now applies for leave to appeal against our decision to the Court of Final Appeal. 2.In order to be entitled to appeal to the Court of Final Appeal the defendant must satisfy the requirements imposed by section 22(1) of the Court of Final Appeal Ordinance (Cap. 484). Either the judgment under appeal is a final judgment involving a claim of $1,000,000.00 or the appeal involves issues of general public importance or that there should be some other reason for the Court of Final Appeal to consider the matter. 3.The defendant applied to strike out the plaintiff’s statement of claim and failed. The judgment was not a final judgment because by reason of the judgment the merits of the plaintiff’s claim are still required to be resolved at the final determination of the claim. It failed the ‘applications test’ in that the determination of the application leading to the judgment would not finally dispose of the action or the relevant issue, whichever party succeeded on the application, see : Sam Woo Bore Pile Foundation Limited v. China Overseas Foundation Engineering Limited (unreported FAMV 21/2007). 4.Further we do not agree that the case involves matters of great general or public importance, or otherwise, ought to be submitted to the Court of Final Court for decision. 5.Accordingly the application is dismissed with costs to the plaintiff. Variation of costs order 6.The defendant also asks for a variation of the provisional costs order that she is to pay the plaintiff the costs of the appeal. She asks for no order as to costs. We will dismiss the application because we are of the view that costs should follow the event.
Mr. Richard Leung, instructed by Messrs Tsang, Chan & Woo, for the Plaintiff Defendant : in person, present |
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