ALLIED SUCCESS CREATION LTD v. CHEUNG HON KUEN AND OTHERS

CACV 77 & 213/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 77 AND 213 OF 2015

(ON APPEAL FROM HCA NO. 451 OF 2010)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.  The 1^st and 2^nd defendants apply for leave to appeal against our judgment of 1 March 2016.

2.  By section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) the defendants are required to show that the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3.  As is apparent from the document attached to the defendants’ Notice of Motion and their written submissions, they have not properly framed any question relevant to section 22(1)(b).  What they have set out is in the nature of what they considered to be grounds of appeal.

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4.  This is a complaint about the Judge’s delay in delivering the judgment and his mistake on the date of a document.  This matter does not even begin to come close to a question of great general or public importance.

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5.  This is a complaint about the plaintiff’s lawyers ‘blackening’ the names of the defendants by reference to three matters. First, the plaintiff’s lawyers alleged that by using the name of the staff of the defendants’ company to purchase the property, the defendants had concealed their identities in order to mislead the seller.  Second, the plaintiff’s lawyers said the defendants had no financial ability or intention to hold on to the property when actually there was no need for the defendants to finance the purchase by mortgage.  Third, it was the plaintiff who produced the document of the defendants’ company.  The Judge had ignored that these documents were not produced by the defendants themselves.

6.  These complaints again do not fulfill the threshold requirement.

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7.  The defendants referred to section 36 of a legislation known as 「地產代理監管局條例」 and claimed that while they were not required under that section to make disclosure to the seller, they had actually made the disclosure although the seller had denied this.  The defendants claimed the Judge’s finding was inconsistent with the section 36 requirement and this involves a question of law of great importance.

8.  The defendants were presumably referring to the Estate Agents Ordinance「地產代理條例」(Cap 511).  This was not an issue before us.  In any event the issue was simply a factual issue of whether the defendants had made disclosures at all.  This so-called point of law is not engaged.

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9.  The defendants complained that the seller knew in August 2009 the defendants were buyers but still completed the sale.  This was not an issue before this Court and does not come close to the threshold requirement.

Conclusion

10.  As the defendants have not satisfied the great general or public importance or otherwise limbs, their applications must be dismissed.

Costs

11.  We will grant costs of the defendants to the plaintiff in the sum of $62,000.  This sum includes counsel’s fee of $28,000.