Kan Lai Kwan also known as Kan Lai Kwan Kay v. Poon Lok To Otto Formerly Known As Pun Lok To Otto and Another

FACV NOS 20 & 21 OF 2013

FACV NO. 20 OF 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 20 OF 2013 (CIVIL)

(ON APPEAL FROM CACV NO. 48 OF 2012)

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Between

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FACV NO. 21 OF 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 21 OF 2013 (CIVIL)

(ON APPEAL FROM CACV NO. 48 OF 2012)

Between :

_______________________

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JUDGMENT AS TO

QUANTUM AND COSTS

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Mr Justice Ribeiro PJ:

1.In its judgment handed down on 17 July 2014, the Court unanimously allowed W’s appeal and dismissed H’s appeal.[1]  It gave liberty to the parties to lodge written submissions on the quantum of the award; directions as to its payment; the costs of certain proceedings below; and certain costs orders nisi.  This is the judgment of the Court on those outstanding matters.

Quantum

2.It is common ground between H and W that the sum of $390,489,523.50 is outstanding and payable by H to W in accordance with the Court’s decision.  W is accordingly entitled to an order for payment of that sum.

Directions as to payment of the outstanding amount

3.In his submissions dated 31 July 2014, H proposed that the outstanding sum be ordered to be paid to W within three months from the date of the Order now to be made.  The trustee[2] explained that this was because payment was intended to be funded by a dividend from Analogue and that it was necessary to seek confirmation from the Royal Court of Jersey, a process likely to take more than three months.  H proposed that after that Court’s approval had been obtained, he would, on receipt of the amount from the trustee, pay over the same to W within 7 days of receipt. 

4.The Court has since been informed[3] that by order dated 22 October 2014, the Royal Court of Jersey approved the trustee’s decision to make a distribution out of the trust fund to H for the purpose of satisfying this Court’s orders in favour of W.  Solicitors for W have written[4] to the Court stating that H has procured Analogue dividends to be declared and paid to the trustee, sufficient to enable the amount due to W to be settled in full.  This has not been contradicted by H or the trustee.

5.It therefore appears that the trustee has been put in funds and can make the payment to W without delay.  Since H has indicated willingness to pay over the monies received to W within 7 days of receipt, we consider it appropriate to order payment of the outstanding amount by H to W within 14 days of the date of this judgment. 

Costs

6.W has lodged submissions on various sets of costs here and below, essentially contending that they should be paid to her by H or out of the trust estate, varying any contrary orders accordingly.  H has not responded on costs, which we take to be an indication that he is prepared to abide by such orders as may be made as to costs. 

Costs at first instance

7.This Court noted[5] that there was some uncertainty as to the position regarding the costs in the CFI and that it appeared that H had in fact paid both W’s costs and the trustee’s costs in full (save for those incurred on 27 February 2012 on W’s unsuccessful application to vary the order nisi as to the trustee’s costs mentioned below).  The trustee confirms that H has in fact paid its costs in full.  No issue therefore arises in this context and no order is required.

Trustee’s costs of 27 February 2012

8.W has not put forward any reasoned grounds for varying the orders made by DHCJ Carlson dated 31 May 2012 and by the Court of Appeal dated 10 May 2013 consequent upon W’s failure in her attempt to set aside the Judge’s orders as sought by her summons of 27 February 2012.  We accordingly decline to interfere with those orders, noting that H has in fact already paid the trustee’s costs other than for the hearing of 24 May 2012.

Costs in the Court of Appeal and in this Court

9.H not having made any submissions to the contrary, we direct that the costs orders nisi requiring H to pay the costs of W and of the trustee in the Court of Appeal[6] stand as orders absolute, the trustee’s costs to be paid on an indemnity basis.

10.We also direct that the costs orders nisi relating to proceedings in this Court that H pay W the costs of both appeals,[7] and that H pay the trustee’s costs, stand as orders absolute, the trustee’s costs to be paid on an indemnity basis.

11.We direct that there be no order as to the costs of the submissions dealt with in this judgment.

Orders

12.We accordingly make the following orders, namely:

(a) That H do pay to W the sum of $390,489,523.50 within 14 days from the date of this judgment.

(b) That the costs orders nisi referred to in paragraphs 140 and 141 of this Court’s judgment requiring H to pay the costs of W and of the trustee in the Court of Appeal do stand as orders absolute, the trustee’s costs to be paid on an indemnity basis.

(c) That the costs orders nisi referred to in paragraph 142 of this Court’s judgment relating to the proceedings in this Court that H pay W the costs of both appeals and that H pay the trustee’s costs, stand as orders absolute, the trustee’s costs to be paid on an indemnity basis.

(d) That there be no order as to the costs of the submissions dealt with in this judgment.

Mr Andrew Lynn and Mr Patrick Siu, instructed by C.Y. Lam & Co., for the Wife (appellant in FACV 20/2013, 1^st respondent in FACV 21/2013)

Ms Anita Yip SC and Mr Eric Leung, instructed by Foo & Li, for the Husband (1^st respondent in FACV 20/2013, appellant in FACV 21/2013)

Mr Victor Joffe QC and Ms Mairead Rattigan, instructed by Withers, for the Trustee (2^nd respondent)