Civil Procedure — Appeal — Leave to final appeal — Unliquidated claim — Whether leave be granted exceptionally on or otherwise limb


(ON APPEAL FROM LDRW 2 OF 2005)

Mr Anthony Houghton SC instructed by the Department of Justice, for the Appellant

Mr Patrick Chong instructed by Messrs JSM, for the Respondent

Stock V.-P: 


REASONS FOR JUDGMENT

Hon Stock V.-P:

I agree with the judgment of Wright J.

Hon Stone J:

I agree with the judgment of Wright J.

Hon Wright J:

[1] On 26 June 2009 we ordered that the appeal be allowed, set aside the order of the Lands Tribunal, and remitted the matter to the Lands Tribunal for it to make a determination, in accordance with law, in respect of Heads A and E of the award it had made to Lingrade Development Limited, the applicant. We further made an order nisi that the applicant is to pay the respondent/appellant’s costs of the appeal and of the proceedings before the Lands Tribunal to date.

[2] The applicant sought leave to appeal our decision to the Court of Final Appeal, contending that it has an appeal as of right pursuant to the provisions of s. 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance , Cap. 484 , alternatively on the "or otherwise" limb contemplated by s. 22(1)(b) of the Ordinance.

[3] We dismissed the application and ordered that the applicant pay the respondent’s costs as taxed or agreed. We said that we would give our reasons later, which we now do.

[4] The applicant has no appeal as of right. Whilst there is a question whether the judgment which leave is now sought to appeal, which found that the Tribunal had erred in law and remitted its decision for determination according to law, is interlocutory or a final judgment, it is unnecessary to determine that question since the claim is plainly unliquidated in the sense discussed by the Court of Final Appeal in China Field Ltd v Appeal Tribunal (Buildings) (No. 1) [2009] 2 HKLRD 135 §§16-18 and §24-25.

[5] On the "or otherwise" limb the applicant contends that we interfered with the fact finding role of the Lands Tribunal. It is plain from our judgment that we found, unequivocally, that the Tribunal had erred in law.

[6] No point of general or public importance is put forward. Leave under the "or otherwise" limb should be granted only in "exceptional circumstances" (see, e.g. Fu Lok Man, James v Chief Bailiff of the High Court (No. 2) [2003] 2 HKC 680 ) and regarded as an "exceptional course" (Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260 §9): none exists in the present matter.

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