ASTRO NUSANTARA INTERNATIONAL B V AND OTHERS v. PT AYUNDA PRIMA MITRA AND OTHERS

HCCT 45/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 45 OF 2010

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BETWEEN

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D E C I S I O N

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1.  The order granting an unconditional stay of execution is an order made on the exercise of the court’s discretion. 

2.  In an appeal against an exercise of a judge’s discretion, the authorities are clear that the ambit of the appellate court’s interference is restricted.  The Court of Appeal will not intervene unless the appellant can show that the judge had misdirected himself with regard to the legal principles in accordance with which his discretion had to be exercised, or had misapprehended material facts, or had taken into account irrelevant matters or failed to take relevant matters into account, such that the judge’s conclusion was plainly wrong, and “outside the generous ambit within which reasonable disagreement is possible”.

3.  In this case, I am not satisfied that I had exercised my discretion under wrong principles of law, or that my decision was plainly wrong. 

4.  The factors taken into consideration in the exercise of my discretion have all been set out in my Decision and I am not persuaded that they are irrelevant, or that any relevant matter had not been taken into account.  The orders for the payment into court were made pending the determination of the garnishee proceedings, and pending the determination of the Singapore proceedings.  Both proceedings had been determined by the time of the application before me.  This cannot be said to be an irrelevant consideration.

5.  Leave to appeal will only be granted if the contemplated appeal has reasonable prospects of success.  I am not satisfied that the proposed appeal has reasonable prospects of success.  Nor am I satisfied that there is any other reason in the interests of justice for leave to appeal to be granted.  I accordingly refuse leave to appeal, with costs including certificate for counsel.