Read the full judgment text of CACV 93/2012, CACV 94/2012, CACV 95/2012, CACV 96/2012 on BabelCite. This Court of Appeal judgment was delivered on 28 January 2014 before Hon Lam VP, Kwan and Barma JJA.
Civil procedure – leave to appeal to Court of Final Appeal – section 22(1)(a) second limb of Hong Kong Court of Final Appeal Ordinance, Cap 484 – whether appeal as of right – claim to or respecting property of value of $1,000,000 or more – immediacy requirement – whether order, if granted, would confer quantified financial benefit without need for further adjudicatory process – shares in Blinco BVI and Patagonia held by Top Selection – underlying assets held through complex chain of companies – whether questions of great general or public importance – attribution of corporate knowledge – burden of proof in proprietary claims – pleading of fraud – whether fraud can be found on unpleaded basis as 'logical and natural' result – whether legal burden shifts to defendant to prove genuineness of documents alleged to be forgeries – 'or otherwise' ground – exceptional circumstances – multi-party commercial dispute – PacMOS shares, Shouson Hill Property, South Horizon Properties – Takeover Arrangement – Swissfirst Papers – Court of Appeal dismissed both applications for leave – Top Selection's appeal not as of right – no question of great general or public importance identified – costs ordered against Top Selection and Hu on party and party basis with certificate for two counsel
Legal issues: Whether Top Selection's appeal lies as of right under second limb of s.22(1)(a) Hong Kong Court of Final Appeal Ordinance · Whether questions of attribution of corporate knowledge raise matters of great general or public importance · Whether burden of proof questions on proprietary claims are of great general or public importance · Whether pleading requirements for proprietary claims raise matters of great general or public importance · Whether interpretation of informal correspondence is a matter of great general or public importance · Whether fraud can be found on an unpleaded basis as the 'logical and natural' result · Whether legal burden shifts to defendant to prove genuineness of documents alleged by plaintiff to be forgeries · Whether 'or otherwise' ground for leave to appeal is made out
Outcome: Applications for leave to appeal to the Court of Final Appeal dismissed. Top Selection's appeal held not to be as of right under s.22(1)(a), and no question of great general or public importance identified warranting discretionary leave. Hu's application for leave to appeal dismissed on the same basis and on the 'or otherwise' ground.
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