Lehman & Co Management Ltd v Effiscient Ltd And Another

CourtCourt of Final Appeal (Hong Kong)
Judgment Date28 Jan 2014
Judgement NumberFAMV36/2013
SubjectMiscellaneous Proceedings (Civil)
FAMV36/2013 LEHMAN & CO MANAGEMENT LTD v. EFFISCIENT LTD AND ANOTHER

FAMV No. 36 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 36 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 272 OF 2011)

____________________

IN THE MATTER of LEHMANBROWN LIMITED
and
IN THE MATTER of Section 168A of the Companies Ordinance (Cap. 32)

BETWEEN

LEHMAN & CO. MANAGEMENT LIMITED Petitioner
(Applicant)
and
EFFISCIENT LIMITED 1st Respondent
(“Cross-Petitioner”)
(Respondent)
LEHMANBROWN LIMITED 2nd Respondent

____________________

Appeal Committee : Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ
Date of Hearing : 22 January 2014
Date of Determination : 28 January 2014

_________________________

D E T E R M I N A T I O N

_________________________

Mr Justice Fok PJ :

1. The applicant seeks leave to appeal against the judgment and order of the Court of Appeal[1] whereby, save to a limited extent, the Court of Appeal dismissed its appeal against the judgments of Harris J on liability and quantum[2] in respect of a petition brought by it against the respondent under section 168A of the Companies Ordinance (Cap.32) and a cross-petition under the same provision brought by the respondent against it, both in respect of LehmanBrown Limited (the Company).

2. It is contended on behalf of the applicant that leave to appeal lies as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap.484).

3. The order sought to be appealed was a buy-out order in respect of, and determination of the fair value of, the applicant’s share in the Company made on the respondent’s section 168A cross-petition and is clearly an unliquidated claim. As the applicant accepts, this is therefore not within the first limb of section 22(1)(a).

4. However, nor is the proposed appeal within the second limb of that section, as was contended by Mr Barrie Barlow SC on behalf of the applicant. Even assuming the applicant’s claim can be characterised as proprietary in nature, it is plain that the immediacy requirement[3] is not satisfied. Assuming in favour of the applicant that its appeal were to be allowed against the valuation of its share in the Company by the courts below and Harris J’s determination of that value (upheld by the Court of Appeal) set aside, the proper fair value of that share would remain to be determined by a further quantification exercise.

5. It is additionally and alternatively contended on behalf of the applicant that the proposed appeal raises questions of great general and public importance so that leave should be granted under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6. The notice of application identifies three questions said to be of great general and public importance. In his submissions, Mr Barlow made it clear...

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