Donpower Trading Ltd v. Apexcom Ltd

CACV 172/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2009

(ON APPEAL FROM HCMP 2095 OF 2008)

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BETWEEN

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Before : Hon Cheung JA, Lunn and Wright JJ in Court

Date of Hearing : 29 April 2010

Date of Decision : 29 April 2010

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.The plaintiff applies for leave to appeal to the Court of Final Appeal against our judgment dated 27 January 2010.

2.In our view the plaintiff is entitled to appeal as of right under the second limb of section 22(1)(a) of the Court of Final Appeal Ordinance (Cap. 484).  The plaintiff’s claim was for, among other things, a declaration that it was entitled to forfeit the deposit of $1.5 million arising from the sale of a property.  We held that it was not so entitled and must return it to the defendant.  The result of the disposal of the appeal is to impose immediately on the plaintiff a financial detriment in the liquidated sum of $1.5 million which satisfies the statutory requirement that the appeal involves ‘some claim … to … property or some civil right’ or ‘some … question … respecting property or some civil right’ of the specified amount : see China Field Ltd v. Appeal Tribunal (Building) No. 1 (2009) 12 HKCFAR 68 at paragraphs 21, 24 and 25.

3.If this requirement is satisfied, it does not matter that the plaintiff’s claim may include other reliefs which do not meet this requirement.

4.We are, however, not satisfied that the section 22(1)(b) requirement has been met.  But since the plaintiff is entitled to appeal as of right we shall grant the plaintiff leave to appeal conditional upon the plaintiff providing security in the sum of $400,000 within 21 days.

Mr. Raymond Lau, instructed by Messrs Leung, Tam & Wong, for the Plaintiff

Mr. Albert Yau, instructed by Messrs Tso Au Yim & Yeung, for the Defendant