LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER

LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER

The court exercised its discretion to decide the leave application on written submissions, found the proposed grounds lacked any reasonable prospect of success and that the defendants failed to identify arguable errors in law or fact (including incorrect allocation of burden and no basis to disturb credibility findings); accordingly leave to appeal and stay were refused and costs awarded against the defendants.

Citation
LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER
Parties
Plaintiff (respondent): Plaintiff; 1st Defendant (applicant): 1st Defendant; 2nd Defendant (applicant): 2nd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 November 2016
Case Number
HCMP1865/2016
Procedural Posture
Partition Ordinance S6 Proceedings; Application for Leave to Appeal to the Court of Appeal / Application for Leave to Appeal Determined on Written Submissions; Summons and Stay Application Considered
Outcome
Application dismissed; leave to appeal refused; stay of execution refused; costs ordered against defendants; no oral reconsideration permitted
Legal Topics
Partition, Joint Tenancy, Beneficial Interest, Leave to Appeal, Costs, Legal Aid, Burden of Proof, Credibility Findings, Stay of Execution
Source Language
EN
Property Equity Civil Procedure Appeal Partition Joint Tenancy Beneficial Interest Leave to Appeal +5 more

Case Brief

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Parties

Plaintiff

Plaintiff (respondent)

1st Defendant

1st Defendant (applicant)

2nd Defendant

2nd Defendant (applicant)

Procedural Posture

Partition Ordinance S6 Proceedings; Application for Leave to Appeal to the Court of Appeal / Application for Leave to Appeal Determined on Written Submissions; Summons and Stay Application Considered

Legal Issues

  1. 1 Whether leave to appeal should be granted
  2. 2 Which party bears the burden of proof as to beneficial interests
  3. 3 Whether the trial judge's factual and credibility findings were plainly wrong

Ratio Decidendi

The court exercised its discretion to decide the leave application on written submissions, found the proposed grounds lacked any reasonable prospect of success and that the defendants failed to identify arguable errors in law or fact (including incorrect allocation of burden and no basis to disturb credibility findings); accordingly leave to appeal and stay were refused and costs awarded against the defendants.

Court Disposition

Application dismissed; leave to appeal refused; stay of execution refused; costs ordered against defendants; no oral reconsideration permitted

Orders

  • Application for leave to appeal dismissed
  • Leave to appeal refused