TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON

TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON

Leave to appeal was refused because the judge had properly exercised his discretion in dismissing the appeal from the master: the alleged settlement was inherently improbable and unsupported by contemporaneous or affidavit evidence, the fresh evidence failed to meet the Ladd v Marshall criteria and therefore could not be admitted, and there was no reasonable prospect of success in the intended appeal.

Citation
TSUI YIN FONG AND ANOTHER v. EDWARD JOHNSON
Parties
1st Plaintiff: Tsui Yin Fong (Administrator of the estate of Tsui Koon Bo); 2nd Plaintiff: Tsui Ming Wai; Defendant (applicant): Edward Johnson
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 March 2013
Case Number
HCMP2878/2012
Procedural Posture
Court of Appeal Application for Leave to Appeal Against Dismissal of Appeal From Summary Judgment / Application for Leave to Appeal (interlocutory)
Outcome
Application for leave to appeal refused; leave to adduce fresh evidence refused; appeal from master’s summary judgment upheld.
Legal Topics
Summary Judgment, Leave to Appeal, Fresh Evidence (ladd V Marshall), Writ of Possession, Mesne Profits, Enforcement of Possession
Source Language
EN
Civil Property Landlord and Tenant Civil Procedure Appeal Summary Judgment Leave to Appeal Fresh Evidence (ladd V Marshall) +3 more

Case Brief

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Parties

Tsui Yin Fong (Administrator of the estate of Tsui Koon Bo)

1st Plaintiff

Tsui Ming Wai

2nd Plaintiff

Edward Johnson

Defendant (applicant)

Procedural Posture

Court of Appeal Application for Leave to Appeal Against Dismissal of Appeal From Summary Judgment / Application for Leave to Appeal (interlocutory)

Legal Issues

  1. 1 Whether leave to appeal should be granted against the judge's dismissal of an appeal from the master's summary judgment
  2. 2 Whether the fresh evidence satisfies the three conditions in Ladd v Marshall to be admitted on appeal
  3. 3 Whether an alleged oral settlement (14 July 2012) prevented enforcement of possession

Ratio Decidendi

Leave to appeal was refused because the judge had properly exercised his discretion in dismissing the appeal from the master: the alleged settlement was inherently improbable and unsupported by contemporaneous or affidavit evidence, the fresh evidence failed to meet the Ladd v Marshall criteria and therefore could not be admitted, and there was no reasonable prospect of success in the intended appeal.

Court Disposition

Application for leave to appeal refused; leave to adduce fresh evidence refused; appeal from master’s summary judgment upheld.

Orders

  • Leave to appeal refused.
  • Fresh evidence not admitted (Ladd v Marshall conditions not satisfied).