LAU KOON FOO v. CHAMPION CONCORD LTD AND ANOTHER

CACV 232/2010 AND CACV 233/2010

CACV 232/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 232 OF 2010

(ON APPEAL FROM HCCL NO. 1 OF 2010)

________________________

BETWEEN

CHAMPION CONCORD LIMITED 1st Plaintiff
CRAIGSIDE INVESTMENTS LIMITED 2nd Plaintiff
and
LAU KOON FOO 1st Defendant
THE DISTRICT LANDS OFFICER,
SAI KUNG
2nd Defendant

________________________

CACV 233/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2010

(ON APPEAL FROM HCCL NO. 5 OF 2010)

________________________

BETWEEN

LAU KOON FOO Plaintiff
and
CHAMPION CONCORD LIMITED 1st Defendant
CRAIGSIDE INVESTMENTS LIMITED 2nd Defendant

________________________

Before: Hon Rogers VP, Le Pichon and Kwan JJA in Court

Date of Hearing: 3 December 2010

Date of Judgment: 3 December 2010

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J U D G M E N T

________________________

Hon Rogers VP:

1. This is an application for leave to appeal from a judgment of this court given on 16 November of this year. I say “this court”because it was by two members of this court. I am reminded that when the appeal came on for hearing before this court was concernedas to whether the matter before us was truly interlocutory or was really a final order. We, therefore, raised this matter beforethe appeal was heard and an undertaking was given that written consent would be given by the parties that there was no objectionto this matter being heard by two judges.

2. The matter before the court, quite simply, was this: that in the court below, the plaintiff had taken out Order 86 proceedingsseeking, in effect, the house in question. The defendant, for his part, had taken out two applications. One was to strike out theclaim and the other was what might be referred to as a corresponding Order 86 application on his part.

3. The issue, that the parties were agreed was the only issue in the two cases, was the proper construction of a settlement agreementand the terms of it. There was to be no oral evidence in the case, the matter was simply to be decided as a matter of construction. Whichever party was successful in one of the Order 86 applications or the strike‑out application would, correspondingly, be successfulin the other one and, whatever decision the judge came to, that would be the end of the matter. There would never be a trial. Thematter would never go any further.

4. The matter then came before this court. The position was precisely the same and this court came to its decision.

5. Now Mr Wright, who has appeared on behalf of the plaintiffs, wishes to appeal to the Court of Final Appeal and says that this shouldbe treated as a final decision.

6. I have to say that having considered the matter in the course of this hearing, I also agree with that, because although Order 86applications and Order 14 applications are treated as interlocutory in the general run of things, because it is what is called “theapplications test” which is considered, this case is a rather special situation. Because there were opposing Order 86 applications,there is, to use the vernacular, nowhere to go. The winner will take all and, as a matter of logic in the peculiar situation ofthis case, I cannot see that the decision is not a final decision. Therefore, in the circumstances, I consider the matter does comewithin the provisions of Order 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. Since that was the only matter that was in issue between the parties, I consider that the plaintiff should have leaveto appeal to the Court of Final Appeal in this case.

7. I would only add that if the Court of Final Appeal considers that I have taken a wrong approach in the matter, I have no doubt,as part of their judgment in the case, they will say so for further guidance of the Court of Appeal on a matter, which I have tosay is not always all that easy to determine.

Hon Le Pichon JA:

8. I agree.

Hon Kwan JA:

9. I also agree.

(Submission re grant of stay)

Hon Rogers VP:

10. We will grant you leave in the usual form and a stay until determination of the appeal in the Court of Final Appeal.

(Anthony Rogers)
Vice-President
(Doreen Le Pichon)
Justice of Appeal
(Susan Kwan)
Justice of Appeal

Mr Colin Wright, instructed by Stephen Mok & Co, for the 1st and 2nd Plaintiffs in CACV232/2010 and the 1st and 2nd Defendantsin CACV233/2010/Applicants

Mr Lawrence Ng, instructed by Messrs Leung, Tam & Wong, for the 1st Defendant in CACV232/2010 and the Plaintiff in CCV233/2010/Respondent

Application by 1st and 2nd plaintiffs for leave to adduce evidence to Court of Final Appeal dismissed. Please refer to FACV16/2010and FACV17/2010 dated 27 May 2011