HARILELA HOTELS LTD t/a HOLIDAY INN GOLDEN MILE HONG KONG v. HOSPITALITY MARKETING CONCEPTS (HONG KONG) LTD AND ANOTHER

HCA 2523/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2523 OF 2004

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J U D G M E N T

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1. I have an application before me by the defendants for stay of execution pending appeal from a judgment of mine that was given extemporary on the 26^th of September 2006 at the trial of the action.

2. The reason that has been put forward by the defendants for the stay of execution under the summons is that there are strong grounds for an appeal to be successful.  I have looked at the grounds of appeal.  I have also heard the argument of Mr Sherry as well as read his skeleton submission and that of Mr Man.  The application for stay is opposed.

3. This is a highly unusual application for a stay because the defendants’ position is that they are willing to pay the money into court.  They are able to pay the money into court.  There is no allegation that the plaintiff is financially not able to repay the money.  In fact, it is admitted that the plaintiff is a substantial company.  And yet the defendants submit that there should be a stay of execution on the basis that the money be paid into court and to prevent the usual execution whereby the plaintiff is entitled to the fruit of its judgment, namely, have the judgment sum paid to the plaintiff.  Now this is unusual because when there is no allegation that their appeal will be rendered nugatory if execution is not stayed, and when there is no suggestion that the defendants are unable to pay or will be ruined because of the execution and the only argument really is that there is a strong ground of appeal that therefore there should be this what I will call somewhat unusual order that is sought.

4. In the circumstances, I have carefully looked at the grounds of appeal.  I agree with the skeleton argument of Mr Man that notwithstanding those grounds of appeal – I hope it is not invidious for this court to say so – I don’t see that there is an overwhelming ground or even a very strong ground, maybe an arguable ground but no more than that.  In the circumstances, it seems to me wholly inappropriate for the court to exercise its discretion to allow the plaintiff to be deprived of the fruit of the judgment.  I think these should be the usual course that the judgment sum should be paid, and when the appeal, if successful, the plaintiff can repay the money to the defendants with interest.  That is therefore my conclusion and the application for stay therefore is refused with cost.  I propose to make a gross sum assessment of the cost.

Gross Sum Assessment

5. The figure put forward by the plaintiff for the gross sum assessment of the cost of the present application which has failed is $30,000 for the total fees of counsel, not just for the brief, and $16,000 for Mr Leung who is a senior solicitor admitted in 1975, charging at $4000 an hour at four hours.  This sum of $46,000 is opposed by Mr Sherry on the basis that it is grossly excessive, that counsel’s fee should be reduced by half and solicitor’s hourly rate, although not challenged, the number of hours spent should be reduced to two hours.

6. In my view, this is not such a straightforward application.  As I have said in my judgment, this is a very unusual application, and the grounds of appeal would disclose that much area has been further expanded from what took place in the court below.  I am not in any way casting any adverse comment on the fact that the defendants rely on larger ground but there is simply more work that required to be done by the plaintiff.  I think in all the circumstances, the $46,000 put forward by the plaintiff is wholly reasonable.  I therefore allow in whole the costs put forward by the plaintiff.  The sum I assess as the sum payable by the defendants to the plaintiff on this failed application for stay of execution is $46,000 which is to be payable forthwith.