Read the full judgment text of CACV 95/2009 on BabelCite. This Court of Appeal judgment was delivered on 28 May 2010 before Le Pichon JA, Cheung JA, Lam J.
Civil law – compulsory sale of land – Land (Compulsory Sale for Redevelopment) Ordinance (Cap 545) – section 4(1)(b) – application by majority owner for compulsory sale of lot at 44-46 Haven Street, Causeway Bay – respondent holding one undivided share (6.25%) with exclusive possession of ground floor shop – parties' valuations of existing use value (EUV) significantly different – tribunal determined EUV of shop units at $4,580,000 per unit – reserve price originally agreed at $122 million but reopened and reset to $70.5 million after financial tsunami – whether the tribunal erred in allowing the RDV to be reopened – whether the tribunal erred in excluding comparable C4b from the shop EUV assessment – whether the Intelligent House tests for 'age or state of repair' under section 4(2)(a) are correct – whether the court has jurisdiction to grant a remedy absent a stay of execution – tribunal erred in allowing the RDV to be reopened because the six-month adjournment was known to the tribunal and the financial crisis, however dramatic, did not constitute a valid reason to reopen a concluded agreement – distinction between price fluctuation and the need to vary orders: W v H and Z applied – comparable C4b was a post-March 2007 transaction containing embedded 'hope value' and was properly excluded – criticism of inconsistency between shop and domestic EUV assessments lacked significance given the parties' stance of not opposing each other's domestic EUV – correctness of Intelligent House tests not challenged below and not decided, but reservations expressed regarding the concept of 'economic lifespan' which does not appear in the Ordinance – absent a stay of execution, the court could not deem the auction price to be other than what was actually achieved, nor order distribution of funds the trustees did not have – section 6(1) limits what the majority owner purchaser must pay into the trust – no jurisdiction under the Ordinance to make an order for any 'shortfall' against the applicant – appeal dismissed – each party to bear its/his own costs of the appeal.
Legal issues: Whether the tribunal erred in allowing the RDV (reserve price) to be reopened · Whether the tribunal erred in excluding comparable C4b from the shop unit EUV assessment · Whether the Intelligent House tests for 'age or state of repair' under section 4(2)(a) are correct · Whether the court has jurisdiction to grant a remedy for the erroneous reopening of the RDV absent a stay of execution
Outcome: Appeal dismissed. Although the respondent succeeded in showing the tribunal erred in allowing the RDV to be reopened, no remedy was available because the respondent had not obtained a stay of execution. The auction had taken place and the order for compulsory sale (with reserve price at $70.5 million) stood.
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