XCHRX STAR TRANS INTERNATIONAL LTD. v. IDEAL AIRCARGO LTD.

HCA3137/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3137 OF 1999

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J U D G M E N T

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1. The Plaintiff brought this action against the Defendant for allegedly outstanding air freight charges due from the Defendant to the Plaintiff.

2. The Defence avers in essence that the Defendant was only "a payment agent" acting for an Ideal Aircargo Limited, Shanghai. The Defence also alleges that the Plaintiff was well aware of the above, and for this reason the Defendant should not be liable.

3. The Plaintiff obtained summary final judgment for the sum claimed against the Defendant on 24 May 1999. A Notice of Appeal against that judgment was lodged by the Defendant on 26 May 1999. That hearing is scheduled to be on 13 August 1999.

4. On 22 July 1999, the Defendant took out an application for stay of execution of the said judgment pending the disposal or determination of the said appeal to the Judge. This is opposed by the Plaintiff. It is a matter of discretion to be exercised judicially as to whether a stay of execution pending an appeal should be granted. The Plaintiff relied on two cases relating to this question : Bank of India v. Murjani [1989] 2 HKC 145 and Caine Tai Investments v. Ayala International Finance [1983] 1 HKC 163.

5. The two factors which are usually of great importance in the exercise of this discretion are :

(a) The weighing of the principle that a successful litigant should not ordinarily be deprived of the fruits of the litigation against the principle that the refusal of a stay would result in the appeal, if successful, being nugatory : see the Murjani case.

(b) The refusal of stay may have a seriously deleterious effect on the appellant even if he were to succeed in the appeal : see the Caine Tai Investments case.

6. The affirmations filed by the Defendant did not address any of these matters. There is nothing in the other materials before me which shed light on them either. The Defendant's evidence addresses on the merits of its Defence set out above.

7. I do not propose to go into the merits of the defence disclosed in the Defendant's evidence save to say that having taken that into account, I do not consider that it is of such weight that it would warrant a stay to be granted in the Defendant's favour.

8. To conclude, I do not consider this to be a case where a stay of execution ought to be granted. The application is therefore refused. I should say for the record that I have taken into account that the appeal hearing is coming up in about two weeks' time (on 13 August 1999).