XCHRX CHINA VEST II-A L.P. v. CHAN KUENG UN ROY

1997 No. A8546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. On 19th March 1998, summary judgment was given against the Defendant for $28,675,000.00. He appealed to a judge-in-chambers and the Court of Appeal, but those appeals were dismissed. He then applied, pursuant to Ord. 45 r. 11, for a stay of execution of the judgment. The master refused the application for a stay, and the Defendant now appeals against that refusal.

2. Ord. 45 r.11 permits the court in its discretion to stay the execution of a judgment if "matters ... have occurred since the date of the judgment". In Tam Ho Man v. Wong Kwok Tai (HCA 4736/85), Hunter J. (as he then was) held that the phrase "matters which have occurred since the date of the judgment" refers to matters which relate to the validity of the judgment and which, if established, might justify the court concluding that this was not a judgment which, on the material placed before it, the court would allow to be executed. That construction of Ord. 45 r. 11 followed London Permanent Benefit Building Society v. De Baer [1968] 1 All E.R. 372, in which Plowman J. (as he then was) said at p.379e-f:

"It is, in my judgment, implicit in the rule that the matters referred to are matters which would or might have prevented the [judgment] being made or would or might have led to a stay of execution if they had already occurred at the date of the [judgment]."

I agree with that construction of Ord. 45 r. 11 for the reasons which Hunter J. gave.

3. The ground on which the Defendant asks for a stay of execution of the judgment does not relate to the validity of the judgment at all. Accordingly, the court's discretion to make an order under Ord. 45 r. 11 has not been triggered, and the master was entirely correct to refuse to grant a stay. The appeal must therefore be dismissed. I should add, though, that the Defendant's proposal for payment of the judgment debt by instalments of $40,000.00 a month is unrealistic. It would take the Defendant over 59 years to discharge the debt, let alone the interest which would have accrued on it in the meantime.