FBC CONSTRUCTION CO LTD v. BEN LEE AND ANOTHER

CACV 160/2011, CACV 189/2011, CACV 190/2011 AND CACV 191/2011

CACV 160/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 2011

(ON APPEAL FROM HCA NO. 1364 OF 2008)

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BETWEEN

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D E C I S I O N

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1.  There are a total of four appeals, three taken out by Big Island Construction (HK) Ltd and its director (“Big Island”) (“CACV 189, 190 and 191 of 2011”) and one taken out by the Wu Yi Group (“CACV 160 of 2011”).

2.  The four appeals arose out of four actions tried together by Poon J and in a 104-page judgment handed down on 28 July 2011, the judge found in favour of Wu Yi Group in three of the actions and in favour of Big Island in the remaining one, hence the four appeals.

3.  CACV 160 of 2011 had been set down for hearing on 11 May 2012, but the parties agree that the four appeals should be heard together.  Therefore the hearing scheduled for 11 May 2012 has to be vacated and new hearing dates have to be fixed.

4.  The parties fail to agree on the estimate length of the hearing of the four appeals.  Big Island suggests that 6 to 8 days should be allocated whereas the Wu Yi Group submits that 3 days would be sufficient.

5.  I have considered the judgment of Poon J and the parties’ respective contentions. It is most undesirable to rush or to have a “part-heard” in appeals of this magnitude and it is better to err on the safe side.  I am of the view that a fair estimate of the length of the hearing is 6 days.

6.  The parties also argue as to who should open first, in both their written and oral submissions.  Mr Ambrose Ho SC suggests that Big Island, being the appellant in three of the four appeals, should file one set of consolidated written submissions for all four appeals, and should also open orally on all four appeals.

7.  Mr Benjamin Yu SC argues that Big Island, as the respondent in CACV 160 of 2011, should not have to file their submissions before the Wu Yi Group.  He suggests that the respective appellants in the four appeals should file their skeleton submissions in accordance with Practice Direction 4.1.

8.  If Practice Direction 4.1 were to be followed, there may well be too many sets of skeleton arguments.  It is, in my view, more convenient for Big Island, being the appellant in three of the four appeals to put in one set of consolidated written submissions first to be followed by another set of consolidated written submissions from the Wu Yi Group.  I believe Big Island’s position can be safeguarded by allowing them to put in a reply submission in CACV 160 of 2011.

9.  I do not propose to give any direction on the order of the oral submissions.  It is a matter for the Court of Appeal to decide at the appeal.  I therefore only give the following directions:

1. The hearing date fixed on 11 May 2012 for CACV 160 of 2011 is vacated;

2. CACV 160, 189, 190 and 191 of 2011 are to be heard together;

3. The hearing of the four appeals is to be fixed for 6 days in consultation with counsel’s diaries before a bilingual division of 3 judges;

4. Big Island to file a set of consolidated written submissions, of no longer than 30 pages printed on A4 papers in no smaller than 14 pt. size, not later than four weeks before the hearing of the appeals;

5. The Wu Yi Group to file a set of consolidated written submissions, of no longer than 30 pages printed on A4 papers in no smaller than 14 pt. size, within another two weeks, with liberty for Big Island to file a reply submission in CACV 160 of 2011 of no longer than 5 pages printed on A4 papers in no smaller than 14 pt. size within a further one week;

6. Parties should comply with Practice Direction 4.1 in terms of filing and serving of appeal bundles etc, subject to the modification in paragraphs 4 and 5 hereof; and

7. A direction hearing be fixed with 30 minutes reserved on or about 10 days before the hearing of the appeals.

10.  Parties submit on costs of the application.

8. Costs of this application to be in the cause of the appeal.