SUPER ELECTRIC MOTOR LTD. v. PAI CHUNG YING AND ANOTHER

HCMP 6305/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 6305 OF 2000

(ON AN INTENDED APPEAL FROM HCA 1916/1993)

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J U D G M E N T

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Hon Mayo VP:

The criteria which has to be considered on an application of this nature are set out at p. 532 of Birkenhead Properties v Leung Yiu [1998] 1 HKLRD 527.

2. The delay here has been fairly extreme. It has been for approximately 2 years. While I accept that both defendants have been in poor health this of itself does not excuse delay of this length. It is germane to also add that an application was made for an extension of time by the defendants to Deputy Judge Wong in 1998 and it was refused. There was no appeal against this refusal.

3. It is also necessary to consider the prospects of success on this appeal.

4. I have formed the view that the prospects of success are minimal. The Deputy Judge was clearly right to order that there should be no stay of the amount he ordered was payable to the plaintiff. The payments made by the defendants were an entirely separate and distinct matter.

5. In undertaking the balancing exercise required to in Birkenhead I have come to the conclusion that all the relevant factors weigh against this application being acceded to. It is accordingly dismissed. Plaintiff will have its costs on a party to party scale.