ACTIVE PROFIT LTD v. NISSHO IWAI HONG KONG CORPORATION LTD AND OTHERS

FAMV No. 21 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2005 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NOS 320 & 332 OF 2003)

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DETERMINATION

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Mr Justice Bokhary PJ:

1.  This is litigation between participants in an elaborately structured land development joint venture which fell through.  Relief was granted to the applicant by Stone J but taken away by the Court of Appeal (Rogers VP and Le Pichon and Cheung JJA).  The applicant now seeks leave to appeal to the Court of Final Appeal.  First, it contends that it is entitled to such leave as of right under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Let us examine that.  One begins by noting that the applicant invokes that part of s.22(1)(a) which covers a “civil right amounting to or of the value of $1,000,000 or more”.  The civil right asserted is the right to relief for breach of trust.  And the relief in question consists of damages for breach of trust or an account of profits derived from such breach.  Those damages or profits require quantification.  Therefore they are unliquidated and do not come within s.22(1)(a).  Accordingly the applicant is not entitled to leave to appeal as of right. 

2.  Next, the applicant seeks leave to appeal as a matter of discretion under s.22(1)(b).  All things considered, we exercise our discretion to grant leave to appeal.  It would not be appropriate to say anything more about the merits in advance of the appeal.