建巧投資有限公司 對 韓國正

建巧投資有限公司 對 韓國正

The leave application was refused because the proposed grounds were case-specific and did not raise matters of general or public importance under Cap 484 s22(1)(b); the ownership and standing arguments were new factual matters barred on appeal under the Flywin principle; and the recusal allegation lacked factual...

Source-derived case information.

Citation
[2020] HKCA 929
Parties
Plaintiff: 建巧投資有限公司 (BESTGUARD INVESTMENT LIMITED); Defendant: 韓國正 (HON KWOK CHING)
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
18 November 2020
Case Number
CACV231/2010
Procedural Posture
Civil Appeal / Application for Leave to Appeal to the Court of Final Appeal
Outcome
Application for leave to appeal to the Court of Final Appeal refused; notice of motion withdrawn/struck out
Legal Topics
Leave to Appeal, Admission of New Evidence/new Arguments on Appeal, Apparent Bias and Recusal, Title by Estoppel, Statutory Interpretation, Costs on Indemnity Basis
Source Language
ch
Civil Procedure Appeal Property Trusts Banking and Finance Judicial Recusal Costs Leave to Appeal +5 more

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Summary, issues, holding and outcome

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Parties

建巧投資有限公司 (BESTGUARD INVESTMENT LIMITED)

Plaintiff

韓國正 (HON KWOK CHING)

Defendant

Procedural Posture

Civil Appeal / Application for Leave to Appeal to the Court of Final Appeal

Legal Issues

  1. 1 Whether the plaintiff possessed legal title to the property and standing given alleged absence of documentation and whether those issues could be raised on appeal
  2. 2 Whether the appellate court misapplied the doctrine of title by estoppel and thereby conflicted with statutory regimes relating to securities, trustees and property law with wider systemic consequences
  3. 3 Whether a judge should have recused for apparent bias because of the defendant's prior complaint about the judge and related procedural rulings

Ratio Decidendi

The leave application was refused because the proposed grounds were case-specific and did not raise matters of general or public importance under Cap 484 s22(1)(b); the ownership and standing arguments were new factual matters barred on appeal under the Flywin principle; and the recusal allegation lacked factual foundation and failed the objective apparent bias test in Deacons, such that there was no basis to grant leave. The application was also abusive, justifying indemnity costs.

Court Disposition

Application for leave to appeal to the Court of Final Appeal refused; notice of motion withdrawn/struck out

Orders

  • The notice of motion is withdrawn/struck out.
  • Defendant (applicant) to pay the plaintiff’s costs of this application on the indemnity basis; if parties cannot agree the amount, the costs are to be assessed by the court.