FCL CHINA DEVELOPMENT PTE. LTD AND ANOTHER v. LAI YUEN LING AND OTHERS

HCA 642/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 642 OF 2013

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D E C I S I O N

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1.  This is the first hearing of the defendants’ application for stay of execution pending the appeal against the summary judgment made by me against the defendants on 12 September 2014.

2.  The plaintiffs ask for directions for the filing of affidavits so that the plaintiffs would be in position to answer the allegations of the defendants.  I take the view that the plaintiffs should be entitled to file affidavits in opposition and so I adjourn the hearing and give directions for the filing of affidavits.

3.  The only issue before the court is whether there should be an interim stay of execution.  My answer is no. 

4.  The reason why the defendants are seeking for an urgent stay of execution is that the plaintiffs had obtained an Mareva injunction in Singapore against the assets of the 1st defendant.  The plaintiffs take the view that the 1st defendant has tried to dispose of her assets shortly after the handing down the judgment, and as a result they want to preserve the assets for the purpose of the execution of the judgment.

5.  I take the view that all the effort that has been taken by the plaintiffs was only to preserve the assets of the defendants for the purpose of the execution of the judgment.  The plaintiffs have yet taken any active steps in asking the defendants to pay the judgment debt.  In such circumstances, there is no urgency for the court to grant an interim stay of execution at this stage, as the only step taken by the plaintiffs is to preserve the assets of the 1st defendant for the purpose of the execution of the judgment.

6.  So in such case, I see no reason to grant an interim stay at this stage, but I also give liberty to the defendants to apply for an urgent stay of execution if there is any change of circumstances. 

7.  However, the court must warn the defendants that they have to justify the urgency if they seek to make such urgent application. It would be a rather high threshold for the defendants to satisfy the court that there is indeed such an urgency, and so I must warn the defendants that they have to seriously consider such matter before they make any attempt for an urgent stay application.

8.  Finally, the defendants ask the plaintiffs to give them 48 hours’ notice before the plaintiffs take any further steps in the execution of the judgment.  I do not think that the provision of such undertaking is appropriate in the present case.  The plaintiffs are now taking steps to preserve the assets of the defendants because they take the view that the defendants are trying to dissipate the assets.  So if the plaintiffs are obliged to give any notice to that effect, it would simply defeat the whole purpose of the exercise. 

9.  In such circumstances, I refuse to order the plaintiffs to provide such undertaking.  I think reserving the right of the defendants to make an urgent application is already a sufficient protection for the defendants at this stage, and so I do not intend to do anything more as suggested by the defendants’ counsel.