AU WAI MING AND ANOTHER v. KAM TZE MING ALFRED AND ANOTHER

CACV 278/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.278 of 2008

(On Appeal from HCA No.738 of 2007)

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BETWEEN:

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JUDGMENT

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Hon. Yuen JA:

1.  On 25 June 2009 we handed down a judgment allowing the Plaintiffs’ appeal from an order of Deputy Judge Gill. As there had been an order for a split trial, judgment was entered for the Plaintiffs on the issue of liability, with the issue of quantum to be remitted to a master.

2.  The Defendants have issued a Notice of Motion for leave to appeal to the Court of Final Appeal. The application is made under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, cap. 484, viz. 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 for decision”. The Defendants have raised three grounds.

Ground (1)

3.  The Defendants first submitted that the appeal involved the following question:

“Under what circumstances would a person (whether by reason of his conduct or representation) be estopped from asserting that he still retains any title to land”.

4.  I do not see how that question arose in the judgments on appeal. The issues formulated by the judge were set out in para. 18 of his judgment. The issues on appeal were re-articulated in the headings set out before paras. 21, 31 and 35 respectively. Estoppel did not feature in any of those issues or indeed anywhere in the judgments. In any event the question postulated is in far too general a form.

Ground (2)

5.  The Defendants then submitted that they should be given leave under the “or otherwise” ground. First, they submitted that it is a virtual certainty that the matter in dispute on the proposed final appeal amounts to or is of the value of $1million or more, or the proposed final appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1 million or more.

6.  As I have noted, the judgment was for liability with damages to be assessed by the master. The Plaintiffs’ claim was for the return of deposits purportedly forfeited by the Defendants in the sum of $989,800, and damages to be assessed.

(1)  In para. 23, there was a claim for particularised damages being commission in the sum of $98,980, registration fees of $210 and costs of investigating title of $10,000.

(2)  In para. 24, there was a claim for unparticularised damages being the difference between the purchase price and the market value of the property or comparable accommodation.

7.  As for the claim in para. 23, those sums together with the deposits of $989,800 will bring the matter in dispute in the proposed final appeal to more than $1 million. However Mr C Y Li the Plaintiffs’ counsel says that the Plaintiffs’ liability to pay commission is questionable as they were not the “defaulting party” under clause 10 of the Provisional Agreement. There is force in this submission. As for the other two sums in para. 23, the Plaintiffs will not proceed with the assessment for the two sums due to the relatively small amount involved ($10,210).

8.  As for the claim in para. 24, these are for unparticularised damages and there is no evidence before us from either party as to the likely quantum. It cannot be assumed that the property market had risen at the relevant time.

9.  The Defendants say that the Plaintiffs have paid them $260,232 in costs for the proceedings before the judge, but in my view this is irrelevant as costs should not be included in this respect as part of the subject-matter of the action.

10.  Accordingly the Defendants have failed to show that there is an utmost probability or virtual certainty that unliquidated damages ultimately awarded would be in excess of $1 million such that the court should exercise its discretion to give leave under the “or otherwise” ground.

Ground (3)

11.  Finally, the Defendants submitted that the majority judgment of this court amounts to a departure from the approach propounded by Litton PJ in Mexon Holdings Ltd v Silver Bay International Ltd [2000] 3 HKCFAR 109 and as one of our number in the majority “has hesitation in doing so”, “grievous injustice would be done” if leave to appeal to the final court is refused.

12.  Speaking for myself, I do not see that the Defendants have reached the high threshold required for leave to be given under the “or otherwise” ground.

13.  I would dismiss the Motion with costs to the Plaintiffs.

Hon Hartmann JA:

14.  I agree and have nothing to add.

Hon. Stone J:

15.  I agree with the judgment of Madam Justice Yuen.