ACTIVE PROFIT LTD v. NISSHO IWAI HONG KONG CORPORATION LTD AND OTHERS
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FAMV No. 21 of 2005
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 21 OF 2005 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NOS 320 & 332 OF 2003)
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Between:
| ACTIVE PROFIT LTD | Applicant | |
| and | ||
| NISSHO IWAI HONG KONG CORPORATION LTD | 1st Respondent | |
| MILEMORE INVESTMENT LTD | 2nd Respondent | |
| MOTOYUKI KODERA | 3rd Respondent | |
| CARLOS YUK KEI CHO | 4th Respondent |
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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ
Date of Hearing: 2 September 2005
Date of Determination: 2 September 2005
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DETERMINATION
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Mr Justice Bokhary PJ:
1. This is litigation between participants in an elaborately structured land development joint venture which fell through. Relief was granted to the applicant by Stone J but taken away by the Court of Appeal (Rogers VP and Le Pichon and Cheung JJA). The applicant now seeks leave to appeal to the Court of Final Appeal. First, it contends that it is entitled to such leave as of right under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. Let us examine that. One begins by noting that the applicant invokes that part of s.22(1)(a) which covers a “civil right amounting to or of the value of $1,000,000 or more”. The civil right asserted is the right to relief for breach of trust. And the relief in question consists of damages for breach of trust or an account of profits derived from such breach. Those damages or profits require quantification. Therefore they are unliquidated and do not come within s.22(1)(a). Accordingly the applicant is not entitled to leave to appeal as of right.
2. Next, the applicant seeks leave to appeal as a matter of discretion under s.22(1)(b). All things considered, we exercise our discretion to grant leave to appeal. It would not be appropriate to say anything more about the merits in advance of the appeal.
| (Andrew Li) Chief Justice | (Kemal Bokhary) Permanent Judge | (Patrick Chan) Permanent Judge |
Mr Benjamin Yu SC and Mr Jenkin Suen (instructed by Messrs Kao, Lee & Yip) for the applicant
Mr Paul Shieh SC and Mr Bernard Man (instructed by Messrs Clement Ng & Co.) for the 1st respondent
Mr Jat Sew-Tong SC and Mr Abraham Chan (instructed by Messrs Hastings & Co.) for the 2nd to 4th respondents