Tam Shuk Yin Anny v. Choi Kwok Chan and Others

CACV 105/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 105 OF 2008

(ON APPEAL FROM HCMP NO. 2399 OF 2004)

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BETWEEN

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

Date of Hearing: 2 September 2009

Date of Judgment: 2 September 2009

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal from the judgment of this court given on 3 June of this year.

2.In the Notice of Motion the application was in fact put under s. 22(1)(a) of the Court of Final Appeal Ordinance, Cap. 484. The basis of that was that the interest that was payable on the judgment, which is a judgment in respect of a petition under s. 168A of the Companies Ordinance, Cap. 32, reached approximately $26 million. But, as has now been conceded by counsel for the applicant, s. 22(1)(a) relates to liquidated claims and, as was also conceded, the interest cannot possibly be considered a liquidated claim and it is not a liquidated amount. So, as counsel had to concede, really that application fell to the ground.

3.What the applicant had failed to do was to apply under the “or otherwise” limb of s. 22(1)(b). So they manfully came along to court this morning with an amended Notice of Motion, applying under s. 22(1)(b) under the “or otherwise” ground. It emerged that the argument put forward was that the paragraph 10 of the order which this court substituted under paragraph 11 of this court’s judgment, was unfair. In the end the argument on behalf of the applicant went back to the argument in the court below, which was dealt with by the judge in paragraphs 26 to 28 of her judgment. In my view, there is no merit in this. This so-called “double accounting” point has been dealt with again and, unfortunately, the applicants on this application, the respondents to the petition, have only got themselves to blame by their attitude that they took throughout the case, which the judge tried to deal with as best she could in her judgment.

4.In my view, this court should not exercise the power to grant leave to appeal under the “or otherwise” limb of s. 22(1)(b) and I would dismiss this application.

Hon Le Pichon JA:

5.I agree.

Hon Sakhrani J:

6.I also agree.

Mr Jeremy Bartlett, instructed by Messrs J Chan, Yip, So & Partners, for the Petitioner/Respondent

Mr Dennis Law & Mr Lawrence Cheung, instructed by Messrs Howell & Co., for the 1st & 2nd Respondents/Applicants

Leave to appeal by the 1st and 2nd Respondents to Court of Final Appeal granted. Please see FAMV51/2009 dated 26 February 2010