FULLY HK HOLDINGS LTD AND OTHERS v. TREASURE PROFIT INVESTMENT LTD AND ANOTHER

CACV 263/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 263 OF 2008

(ON APPEAL FROM LDCS NO. 3000 OF 2007)

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D E C I S I O N

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1.  This appears to be a very minor thing which, in my view, should not delay the hearing of the matter before the Lands Tribunal one second.  Before me today is an application by the 2nd respondent, seemingly supported by the 1st respondent, for an order that the order of the Lands Tribunal made on 28 August 2008 providing that “the 2nd respondent do, within five days from the date of this order by one of its authorised directors, make and file an affidavit/affirmation stating whether it has in its possession, custody or power, the documents set out in the Schedule and if, in the affirmative produce to the applicants copies of the documents referred to in the Schedule,” be stayed pending the determination of the 2nd respondent’s appeal against the said order herein.

2.  When this matter was requested to be heard on an urgent basis earlier this month, it was made perfectly clear that this court did not consider that the matter merited any urgent attention whatever and one would have hoped that the 2nd respondent might have taken the hint.  Evidently, it has not.

3.  The 2nd respondent, as the mortgagee of the 1st respondent, was served with these proceedings which are before the Lands Tribunal.  It has taken part in those proceedings and it has issued a response in those proceedings.  At the outset, Mr Wong, who has appeared on behalf of the 2nd respondent, appeared to vacillate as to whether the 2nd respondent really wished to take part in the proceedings or not.  As it came down to it at the end of the day, it has taken the position that it does want to take part in it.

4.  It is thus bound by an order of 28 September 2007 by which it is required to file a list of documents and give discovery and there was this further order made by Deputy Judge Yiu, the presiding officer of the Lands Tribunal, which is dated 28 August 2008.

5.  The application by summons was in respect of, as I have indicated, the provision of an affidavit relating to documents which are set out in the schedule.  Now, today, what Mr Wong has been complaining about is subparagraphs (b), (d) and (e) of the schedule to the order made by the presiding officer which relate to “confirmation”.  But as I read those subparagraphs, really what they are is a minimal form of discovery avoiding the necessity of actually producing documents unless they are shown to exist and it is simply providing a further and better list of documents on discovery.  In any event, subparagraph (e) of the schedule apparently has been complied with.

6.  This application is an application for stay pending the appeal.  I see absolutely no merit in the appeal whatsoever.  As Mr Chain has pointed out, appeals from Lands Tribunal are on matters of law.  This is a matter of case management.  If any information or documents have passed as a result of this order and have come into possession of the applicants, that is for the purposes of these proceedings and nothing else.

7.  What appears to trouble the 2nd respondent is an allegation that there may be something not quite right with the mortgage which was entered into.  That is really not part of these proceedings at all.

8.  In my view, this application for stay should never have been made.  It is regrettable that it was.  The parties should just get on with hearing before the Lands Tribunal and the sooner that is done, the better.  These proceedings have obviously been going on long enough and it is time that they were brought to some conclusion.  The threat that there is going to be some appeal in this matter as regards the discovery after the hearing before the Lands Tribunal seems to me to be simply satellite litigation of the worst order.

9.  I therefore dismiss this application.

(Submissions re costs)

10.  The costs are in discretion.  I do not think that there should be an appeal in this case and I do not think this application should have been made.  I think the respondents are lucky to get away with simply having to pay the costs of this application.  Costs against both respondents.