MAN FONG HANG v. MAN PING NAM AND OTHERS

CACV 104/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 104 OF 2004

(ON APPEAL FROM HCA NO. 7935 OF 1998)

BETWEEN

  MAN FONG HANG (文晃恆)
(the surviving administrator of the estate of Man
Mou Hei (文戊喜) also spelt as Man Mo Hei,
Man Mau Hei and Man Mo Hi and also known
as Man Hei (文喜))
Plaintiff
and
MAN PING NAM (文炳南) 1st Defendant
MAN YING LAM (文英林) 2nd Defendant
MAN LEUNG (文良) 3rd Defendant

Before : Hon Cheung JA, Hon Yuen JA and Hon A Cheung J in Court

Date of Hearing : 2 June 2005

Date of Decision : 2 June 2005

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D E C I S I O N

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Leave to appeal

1. This is the defendants’ application for leave to appeal to the Court of Final Appeal against the judgment we rendered on 9 March2005.

2. The parties had originally signed a consent application which was said to be based on section 22(1)(a) of Hong Kong Court of Final Appeal Ordinance, Cap. 484. The Court has refused to endorse the application because we are of the view that the subject matter in issue is not withinthe statutory provision.

3. The defendants now seek to amend the application by relying on both section 22(1)(a) and (b).

Section 22(1)(a)

4. We will deal with section 22(1)(a) first. In our judgment we affirmed Lam J’ s decision to award $2,756,654.39 by way of equitable compensation to the plaintifffor breach of trust by the defendants and also orders for accounts to be furnished by the defendants.

5. The judgment sum is not a liquidated claim. As the Court of Final Appeal has held in Bill Chao Keh Lung v. Don Xia (FAMV No. 6 of 2004) the right of appeal under section 22(1)(a) does not extend to claims for unliquidated damage nor to unliquidated damages which had been assessed in excess of $1 million.

6. The Statement of Claim had pleaded $2,067,265.79 as equitable compensation. While a fixed sum had been pleaded, the nature of theclaim required this sum to be assessed because it was a claim for damages for breach of trust. The claim remained as an unliquidatedclaim.

7. Secondly it is said that the matter in dispute concerns sale of property at an undervalue of more than $58 million. In our viewwhile the trust land disposed of by the defendants may exceed the $1,000,000 threshold, the nature of the plaintiffs’ relief isthat of damages for breach of trust. The claim is outside the ambit of section 22(1)(a).

8. Thirdly it is said that the appeal involves indirectly claims in 27 other High Court actions for monies over $46 million. Theseactions were brought pursuant to the judgment of Lam J. given in this action. The plaintiffs in these actions are not the same plaintiffin this case. In our view the 27 other actions will not by themselves turn an unliquidated claim into a liquidated claim.

9. In our view section 22(1)(a) is not satisfied.

Section 22(1)(b)

10. As to section 22(1)(b) it is said that issues of great general or public importance are involved. First, whether a manager registered under section 15 of the New Territories Ordinance ought to be relieved under section 60 of the Trustee Ordinance if he had acted honestly and reasonably when disposing of land.

11. In our view whether such a manager will be relieved or not will depend on the circumstances of the case. There is no serious argumentthat section 60 is itself not applicable.

12. Second, whether the duty imposed on a section 15 manager in disposing of land is no less than that imposed on a trustee accustomed to business dealings in a modern society, or whetherthe general circumstances and history of the New Territories should be taken into account in assessing such a duty.

13. In our view this question although dressed up as a matter of great general or public importance will in practical terms depend onthe facts of the case. This is not a question that can be answered in a vacuum. The breach of duty on the part of the defendantsin the present case was determined on the facts. We are not convinced that a real issue of great general or public importance isinvolved.

‘Or otherwise’ ground

14. Finally it is said because of the other 27 pending actions involving over $1 million, leave should be granted on the ‘or otherwise’ground. We are not convinced by the logic of the argument. If the present action does not come within the ambit of section 22(1)(a) and (b) and by itself there is nothing to justify that leave should be granted on the ‘or otherwise’ ground, we fail to see whythe presence of 27 other cases will make the position any different.

Conclusion

15. There is no merit in the application. The application to amend and application for leave to appeal are refused. Costs of the applicationsbe to the plaintiff.

(Peter Cheung)
Justice of Appeal
(Maria Yuen)
Justice of Appeal
(Andrew Cheung)
Judge of the Court of First Instance

Mr. Bernard Man, instructed by Messrs Baker & McKenzie for the plaintiff

Mr. Ernest Koo, instructed by Messrs Peter Mo & Co. for the 1 st and 2 nd defendants