FCL CHINA DEVELOPMENT PTE LTD AND ANOTHER v. LAI YUEN LING AND OTHERS

CACV 193/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2014

(ON APPEAL FROM HCA 642 OF 2013)

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DECISION

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Hon Cheung JA (giving Decision of the Court) :

1.The defendants apply for leave to appeal to the Court of Final Appeal against our judgment of 19 March 2015 and also for a stay of execution of the judgment pending determination of the appeal. Lam VP had directed the applications to be dealt with on paper which we now do.

2.In our judgment we affirmed the decision of Deputy High Court Judge David Lok (as he then was) to grant summary judgment against the defendants. We held that the defendants had failed to show that they had a credible defence by way of misrepresentation and the operation of the prevention principle.

3.In order to obtain leave, the defendants must show that there are questions of great, general or public importance fit to be considered by the Court of Final Appeal and they are also required to identify the questions in a succinct way, see Ho Sin Yingv. Chan Yui Ling the Administratrix of the estate of Tsang Kwok Lik Deceased and Anor (CACV221/2013).

4.The defendants did not formulate any such question. They argue that the misrepresentation ‘may constitute fraud’ which may preclude the reliance by the plaintiffs of the summary judgment procedure. They further argued that ‘the facts pertaining to the misrepresentation and the prevention defences are part and parcel of and interrelated to the fraud exception for Order14 proceedings’.

5.The difficulty for the defendants is simply that fraud has never been pleaded nor raised in arguments before. The principle that fraud must be pleaded at the first opportunity is too well established. Before the defendants can even begin to rely on the fraud exception to Order14, they must overcome this hurdle first. The defendants’ pleading was settled by senior counsel. To rely on fraud for the first time after two rounds of hearing only shows the desperate nature of the defence.

6.Further, it is the practice of this Court not to grant leave to appeal based on new arguments which have not been canvassed before us, see The Law Society of Hong Kong v a Solicitor, CACV78/2014, 10 July 2015.

7.In any event our judgment was a decision based on the facts of the case and we see no questions of great, general or public importance being engaged. The defendants have failed to satisfy the threshold test for the granting of leave.

8.Although the defendants repeated their request for an oral hearing in their written submissions, they have not provided proper reasons why an oral hearing is required.

9.Accordingly, we will dismiss the applications with costs to the plaintiffs. Based on the Statement of Costs of the plaintiffs, we fixed the costs at $72,426.