NG CHO CHU JUDY v. CHAN WING HUNG

CACV 139/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 139 OF 2016

(ON APPEAL FROM DCMP NO 2498 OF 2014)

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JUDGMENT

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Hon Kwan JA (giving the Judgment of the Court):

1.  This is the defendant’s notice of motion issued on 25 August 2017 for leave to appeal to the Court of Final Appeal against our judgment handed down on 28 July 2017 ([2017] 4 HKLRD 396). In our judgment, we held that the District Court has jurisdiction under section 36 of the District Court Ordinance, Cap 336 to hear and determine “pure” title cases (i.e. an action in which the title to an interest in land is in question and it does not fall within any of the discrete categories in sections 32, 33, 35, 37, 38 or 39 of Cap 336) within the relevant monetary limit. We upheld the decision of Deputy Judge Winnie Tsui ([2016] 1 HKLRD 1073) granting summary judgment and declaratory relief to the plaintiff pursuant to a declaration of trust in respect of a property registered in the sole name of the defendant.

2.  The defendant seeks leave to appeal on the basis that questions of great general or public importance are raised.  He also relies on the “or otherwise” limb.

3.  The questions framed in the notice of motion said to be of great general or public importance ran to four pages and were numbered 1 to 6 with sub-paragraphs for some of the questions.  Questions 1, 2, 5(b) and (c) deal with the issue of jurisdiction.  Questions 3, 4, 5(a) and 6 relate to the merits of the case as to whether the defendant had raised triable issues of fact so that summary judgment should not be entered.  We do not propose to set out the questions.

4.  We do not think it appropriate to grant leave to appeal on any of the questions.

5.  We accept that the questions raised in relation to jurisdiction may be of great general or public importance but they are not reasonably arguable for the reasons fully canvassed in our judgment.  We do not think there is any reasonable prospect of the Court of Final Appeal coming to a different view.

6.  The other questions relating to the merits of the case are plainly not questions of great general or public importance, nor are they reasonably arguable.  Furthermore, Question 4 (whether a solicitor in failing to correctly interpret the meaning and effect of a deed of trust to be executed might be held liable for professional negligence) is not an issue raised before the judge or on appeal, and it is not reasonably arguable that the answer to this question will affect the judgment under appeal.

7.  For the “or otherwise” limb, it has not been addressed in the notice of motion or the defendant’s submission why it is suggested that the matters in question may support leave to appeal under the “or otherwise” limb even if they fail to do so under the “question of great general or public importance” limb (Dr Leung Shu Piu v Medical Council of Hong Kong (2014) 17 HKCFAR 356 at §14).  No basis for granting leave under the “or otherwise” limb has been made out.

8.  For all the above reasons, we dismiss the defendant’s application for leave to appeal.

9.  There is no reason why costs of the application should not follow the event.  We order the defendant to pay the plaintiff’s costs of this application.  The plaintiff’s solicitors have submitted a statement of costs for summary assessment in the amount of $92,800. We think the amount claimed is on the high side, considering that the defendant essentially repeats the submissions on appeal and the same team of lawyers are involved.  We assess the reasonable fees recoverable by the plaintiff at $54,800.