Fineway Properties Ltd v. Sin Ho Yuen Victor, The Administrator of the Estate of Sin Yat
Read the full judgment text of CACV 95B/2009 on BabelCite. This Court of Appeal judgment was delivered on 16 February 2011 before Le Pichon JA, Cheung JA, Lam J.
Civil appeal – leave to appeal to Court of Final Appeal – section 22(1)(b) of Hong Kong Court of Final Appeal Ordinance (Cap. 484) – Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545) – reserve price reopened by Tribunal after financial crisis – agreed reserve price of $122 million in June 2008 reduced to approximately $70.5 million in March 2009 – applicant sought leave to appeal conditionally on respondent being granted leave – whether questions formulated raised issue of great general or public importance – whether Tribunal erred in reopening reserve price due to market fluctuation – whether Tribunal has gatekeeper function to ensure reserve price is fair – practice of formulating questions of great general or public importance during hearing deprecated – underlying case concerned remedies available to minority owner after auction with reserve price held to be wrong – Leave refused because questions posed were fact-sensitive and did not raise issue of great general or public importance – new 'gatekeeper' argument not raised on prior appeal – costs to respondent – Happy Dragon Restaurant Ltd v The Director of Lands followed.
Legal issues: Whether the proposed grounds raised a question of great general or public importance for leave to appeal to the Court of Final Appeal
Outcome: Leave to appeal to the Court of Final Appeal refused with costs to the respondent
Cites 2 cases
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CACV 95/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 95 OF 2009 (ON APPEAL FROM LDCS NO. 5000 OF 2007) ________________________ BETWEEN
________________________ Before: Hon Le Pichon, Cheung JJA and Lam J in Court Date of Hearing: 16 February 2011 Date of Judgment: 16 February 2011 Date of Handing Down Reasons for Judgment: 18 February 2011 ________________________ REASONS FOR JUDGMENT ________________________ Hon Le Pichon JA: 1.This was an application by the applicant for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 (“the Ordinance”). At the conclusion of the hearing leave was refused with costs to the respondent. The reasons appear below. 2.This case is unusual in that on 30 November 2010, on the respondent’s application, the respondent obtained leave pursuant to section 22(1)(b) of the Ordinance to appeal to the Court of Final Appeal on the question:
The respondent’s notice of application filed in June 2010 was for leave pursuant to section 22(1)(a) and (b) of the Ordinance. Prior to the hearing of that leave application, on 9 November 2010 the applicant filed a notice of motion for leave to appeal to the Court of Final Appeal
but without specifying the particular provision(s) of section 22(1) of the Ordinance on which it based its application. Nor was any question of great general or public importance formulated either in the applicant’s notice of motion or the written submissions of counsel who appeared for the applicant. 3.At the hearing on 18 November 2010, Mr Coleman SC who appeared for the respondent abandoned most if not all of the grounds stated in the respondent’s notice of application and formulated the question of great general or public importance upon which leave was eventually granted. This court did not deal with the applicant’s notice of motion given the course of events and the absence of the formulation of any question(s) of great general or public importance by the applicant. 4.The present application to consider the applicant’s notice of motion was made by way of summons on 6 December 2010. 5.In § 16 of his written submissions, Mr Mok (who appeared for the applicant) formulated the following question said to be of great general or public importance:
6.That the question posed is fact-sensitive is self-evident. It raises no question of great general or public importance that deserves to go to the Court of Final Appeal. 7.Undeterred, Mr Mok proferred an alternative question which he formulated on the spot during the hearing:
The question posed was said to track § 17 of this court’s judgment handed down on 28 May 2010. That statement would not appear to be accurate. 8.Be that as it may, as I understand it, while accepting the need for finality in proceedings, Mr Mok wishes to put before the Court of Final Appeal the proposition that, under Cap. 545, the tribunal has a ‘gatekeeper’ function to ensure that the reserve price is fair and that therefore the tribunal is entitled, even of its own accord, to reopen the parties’ concluded agreement as to the reserve price. That is a new argument that was not raised on the appeal to this court. In any event it does not arise from the question posed. 9.In Happy Dragon Restaurant Ltd v The Director of Lands, CACV 201 of 2009, unreported, 8 June 2010 this court explained the importance of having the question or questions said to be of great general or public importance properly formulated prior to the hearing of the application and, in the hope that those making such applications in the future will take heed, I reiterate it here:
For counsel to attempt to formulate the question during the hearing is a practice that I deprecate. Hon Cheung JA: 10.I agree. Hon Lam J: 11.I agree.
Mr Mok Yeuk Chi, instructed by Messrs Lo, Wong & Tsui, for the Applicant Mr Liu Chin Yu, instructed by Messrs Wong Poon Chan Law & Co., for the Respondent Appeal by the respondent to Court of Final Appeal disposed of pursuant to a settlement. Please refer to Appeal by the respondent to Court of Final Appeal disposed of pursuant to a settlement. Please refer to Appeal by the respondent to Court of Final Appeal disposed of pursuant to a settlement. Please refer to Appeal by the respondent to Court of Final Appeal disposed of pursuant to a settlement. Please refer to FACV13/2010 dated 24 May 2010 |