Read the full judgment text of CACV 1058/2001 on BabelCite. This 高等法院上訴法庭 judgment was delivered on 11 June 2002 before Hon Rogers VP, Le Pichon JA, Yeung JA.
Arbitration — Construction of Deed and Undertaking — Obligation to surrender commercial gross floor area — Lease restrictions under Deeds of Variation — Whether obligation to surrender occurred immediately or post-dispute settlement — Appeal against refusal of leave to appeal arbitral award — Finality of arbitration — Dispute over permitted commercial floor area under leases and Government premium — Swire Properties and related companies held 999-year leases with development rights limited by 1975 Deeds of Variation imposing maximum residential and commercial floor areas. Swire developed beyond residential GFA limits, obtaining Government consent contingent upon surrendering commercial GFA and paying a premium. A dispute arose as to the extent of commercial development permitted, leading to arbitration. The arbitrator found breach by Swire for exceeding commercial limits after surrender. Swire sought leave to appeal, arguing that the Deed and Undertaking did not bind it to surrender commercial GFA or that surrender obligation was contingent on dispute settlement. Burrell J refused leave. On appeal, the Court of Appeal held that Swire was contractually bound to surrender 1.9 million square feet of commercial GFA from the date of the Deed and Undertaking irrespective of ongoing disputes as to overall commercial limits. The court emphasized adherence to arbitration finality, noting that Swire’s new arguments were not advanced at arbitration or below and were unarguable. Appeal dismissed with costs order nisi in favour of Government. Counsel: Mr Michael Thomas SC and Mr Paul Shieh for Applicants; Mr Iain Milligan QC and Mr Jonathan Harris for Respondent.
Legal issues: Construction and effect of the Deed and Undertaking on commercial gross floor area
Outcome: Appeal dismissed with order nisi of costs in favour of respondent.
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