Read the full judgment text of CACV 339/2008 on BabelCite. This Court of Appeal judgment was delivered on 24 September 2009 before Hon Tang VP, Le Pichon JA and Stone J.
Civil procedure – leave to appeal – Court of Final Appeal Ordinance – ancillary relief – divorce – as of right – public importance – China Field Ltd v Appeal Tribunal (Buildings) (No. 1) [2009] 2 HKLRD 135 – Matrimonial Proceedings and Property Ordinance – lump sum order – financial relief – proprietary claim. Application by respondent husband for leave to appeal to the Court of Final Appeal from an order of the Court of Appeal dated 22 July 2009 allowing the petitioner wife’s appeal and ordering the respondent to pay a lump sum of $32.26 million by way of ancillary financial relief. The Court of Appeal refused leave with costs to the petitioner. The primary legal issue concerned whether the appeal lay as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance. The Court held that the first limb of section 22(1)(a) applies to unliquidated claims for ancillary relief, but leave is not as of right unless the claim is liquidated. The second limb, which covers claims respecting property or civil rights of value $1 million or more, was held not to apply to ancillary relief claims as they are not proprietary in nature. The Court relied on the guidance in China Field Ltd v Appeal Tribunal (Buildings) (No. 1) [2009] 2 HKLRD 135, noting that a narrow construction is to be applied to provisions allowing appeals as of right. The second limb was interpreted to cover proprietary claims such as specific performance or trust interests, not ancillary relief. The Court emphasized that the value of the claim must be clearly quantifiable and the order must immediately confer financial benefit or detriment. The Court further considered whether questions of great general or public importance arose under section 22(1)(b). The respondent formulated five questions, focusing on the duration of marriage, career aspiration compensation, and third party resources. The Court found these questions fact-sensitive and unique to the case, not stating principles of law susceptible of general application. The Court noted that while the duration of marriage question could be of public importance if framed abstractly, the specific framing regarding unstable relationships was amorphous. Finally, the Court considered the 'or otherwise' ground regarding a mathematical error in asset calculation. The Court found no injustice discernible on the face of the judgment. The appeal by the respondent to the Court of Final Appeal was refused. Costs were awarded to the petitioner. Subsequent reference was made to FACV21/2009 dated 12 November 2010 regarding the CFA appeal outcome.
Legal issues: Appeal as of right under s.22(1)(a) of Hong Kong Court of Final Appeal Ordinance · Questions of great general or public importance under s.22(1)(b) · Mathematical error in asset calculation under 'or otherwise' ground
Outcome: Application for leave to appeal to Court of Final Appeal refused.
Cited by 6 cases