THE INCORPORATED OWNERS OF WAH TAT INDUSTRIAL CENTRE v. YICK FUNG HOLDINGS LTD

HCA4580/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.4580 OF 2003

---------------------------

-----------------------

--------------------------------------------------------

REASONS   FOR   DECISION

--------------------------------------------------------

1. On 6 April 2006, I refused the defendant’s application for stay of execution of the judgment dated 27 February 2006 pending appeal.  These are the reasons for my decision.

Judgment

2. I will adopt the abbreviations and references used in the Judgment handed down on 27 February 2006.

3. Pursuant to the Judgment, the plaintiff obtains, inter alia :

(1) A declaration that the BTM Room and the Passageway form part of the common parts of the Land.

(2) An injunction restraining the defendant from occupying the Orange Portion of the BTM Room and the Passageway to the exclusion of the other owners of the Land.

(3) An order that the defendant do deliver up vacant possession of the Orange Portion of the BTM Room within 42 days after the handing down of the Judgment.

(4) An order that the defendant do within 42 days from the handing down of the Judgment :

          (a) remove the booth placed on the Passageway;

          (b) remove the boarding erected at or on the Passageway; and

          (c) deliver up vacant possession of the Passageway.

4. On the defendant’s counterclaim, I made a declaration that the defendant is entitled to exclusive possession of the Exterior Walls and dismissed the balance of the counterclaim.

Refusing the application

5. The applicable principles have been summarised in Hong Kong Court Practice 2006, Vol.1, para. 59/13/1 at p.897.  I do not propose to repeat them here.

6. Applying those principles, I am prepared to proceed on the basis that the defendant has an arguable case on appeal.  However, I am not satisfied that the appeal will be rendered nugatory if no interim stay is granted.  Under the Judgment, the defendant has to deliver up vacant possession of the Orange Portion of the BTM Room and the Passageway.  If the defendant succeeds on appeal, the plaintiff can always be ordered to re-deliver up vacant possession to the defendant.  The defendant can then re-construct the booth at the Passageway and re-convert the Orange Portion into an office, if so desired.  The defendant may suffer some inconvenience and have to incur some expenses in the exercise.  But I do not think it amounts to any form of prejudice that justifies an interim stay.  Indeed, I fail to see how the defendant would suffer any form of prejudice at all if no interim stay is granted.

7. For these reasons, I refused the application.