LAM CHI MING v. LEUNG HOP FOOK AND OTHERS

LAM CHI MING v. LEUNG HOP FOOK AND OTHERS

Leave to appeal out of time was refused because the delay (11 months) was excessive without satisfactory explanation, the proposed grounds lacked sufficient merit (Yuen failed to show an arguable defence based on incapacity or unfairness) and Lam would be prejudiced; accordingly the appeal was dismissed and enforcement of the Tomlin order by specific performance (assignment of the Property) was ordered under the Judgment and s25A HCO.

Citation
LAM CHI MING v. LEUNG HOP FOOK AND OTHERS
Parties
Plaintiff: Lam; 1st Defendant: Leung; 2nd Defendant: Yuen; 3rd Defendant: Tam
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 November 2013
Case Number
HCA1590/2011
Procedural Posture
Civil Dispute Involving Property, Contract Enforcement and Appeal / Hearing on Leave to Appeal Out of Time and Enforcement Summons (application to Enforce Tomlin Order)
Outcome
Leave to appeal refused; appeal dismissed; enforcement order granted for specific performance of Tomlin schedule (assignment of Property to Lam); costs ordered nisi to Lam
Legal Topics
Specific Performance, Tomlin Order Enforcement, Mediation Settlement, Mental Incapacity and Undue Influence, Extension of Time to Appeal, Admissibility of New Evidence on Appeal, Lis Pendens/registration, Costs
Source Language
EN
Property Law Contract Law Civil Procedure Equity and Trusts Probate/estate Matters Specific Performance Tomlin Order Enforcement Mediation Settlement +5 more

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Parties

Lam

Plaintiff

Leung

1st Defendant

Yuen

2nd Defendant

Tam

3rd Defendant

Procedural Posture

Civil Dispute Involving Property, Contract Enforcement and Appeal / Hearing on Leave to Appeal Out of Time and Enforcement Summons (application to Enforce Tomlin Order)

Legal Issues

  1. 1 Whether leave to appeal out of time should be granted despite 11-month delay
  2. 2 Whether the Tomlin order and mediated settlement were voidable for mental incapacity/undue influence
  3. 3 Whether new medical evidence should be admitted on appeal (Order 58 r1(5) and Ladd v Marshall)

Ratio Decidendi

Leave to appeal out of time was refused because the delay (11 months) was excessive without satisfactory explanation, the proposed grounds lacked sufficient merit (Yuen failed to show an arguable defence based on incapacity or unfairness) and Lam would be prejudiced; accordingly the appeal was dismissed and enforcement of the Tomlin order by specific performance (assignment of the Property) was ordered under the Judgment and s25A HCO.

Court Disposition

Leave to appeal refused; appeal dismissed; enforcement order granted for specific performance of Tomlin schedule (assignment of Property to Lam); costs ordered nisi to Lam

Orders

  • Leave to appeal out of time refused and notice of appeal dated 22 August 2013 dismissed
  • Appeal dismissed and judgment of 4 September 2012 (Masters judgment) upheld