WONG LOI YEUNG AS MANAGER OF SAM CHAU TIN HAU GODDESS TEMPLE v. LEUNG AH SHUI AND ANOTHER

HCA 1157/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1157 OF 2011

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D E C I S I O N

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The application

1.  This application is pursuant to my Decision made on 25 October 2013, which dismissed the defendants’ striking-out application and ordered the defendants to pay the plaintiff’s costs assessed under Order 62 rule 9A of the Rules of the High Court at $125,000 within 14 days from the date thereof (‘the Costs Order’).

2.  On 7 November 2013, the defendant lodged a Notice of Appeal against my decision of dismissing the striking-out application and on costs.  On the same day, the defendants had also taken out this application to stay the execution of payment of the costs of $125,000 under Order 45, rule 11 and Order 58 rule 1 of the RHC respectively.[1]

3.  The facts of this matter have been briefly set out in my Decision given on 25 October 2013.  For the purpose of this application, it is not necessary to reiterate the facts here.

4.  Ms L. Chan, counsel acts for the defendants and Ms E. Yung, counsel acts for the plaintiff.

5.  According to Ms Chan, the parties had come to an agreement that the costs of $125,000 should be paid to the plaintiff’s solicitors to be held as stakeholders until the determination of the appeal.  However, they are unable to come to an agreement in respect of the costs of this application, including counsel’s fee.  Hence, the defendants pursue the application.

The grounds for the application

6.  The grounds of the defendants’ application are that there is appreciable risk that if the money is paid to the plaintiff, there is no reasonable prospect of recovering it from the plaintiff if the defendants’ appeal is allowed, making it a nugatory.[2]

Discussion

7.  The plaintiff complains that the defendants had failed to comply with the Court’s Note dated 20^th November 2013 and PD. 5.4, in that skeleton submissions had only been provided in the afternoon of 4^th December 2013, which was due on 3^rd December 2013 before 5:00pm.[3]

8.  The plaintiff also complains that the defendants had failed to comply with Order 32 rule 1 in which every application in chambers not made ex parte must be made by summons and must be supported by affidavit, such affidavit shall be filed at the same time as the summons.[4]

9.  Ms Yung relies upon the relevant principles for a stay application set out in §§ 7 - 10 of thejudgment of Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management CompanyLtdunreported, HCA 4726/2001, 7 June 2002 as further explained in Wenden Engineering ServiceCompany Limited v Lee Shing Yue Construction Company Limitedunreported, HCCT 90/1999, 17 July 2002, § 6.  Although these two authorities were predicated upon Order 59 rule 13(1), appeal to the Court of Appeal, since the defendants’ ground of application states that the appeal would be rendered a nugatory if this application is refused, I consider that those reasons set out in those authorities on the same issue should be equally applicable to this application.

10.  The defendants’ application is bound to fail for the following reasons:

a. Order 45 rule 11 provides:

“Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.”

b. there is no evidence from the defendants to tell this Court what had occurred since the date of the Decision;

c. Order 58 rule (4) provides:

“(4) Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought.”

d. Order 32 rule 1 provides that the application should be filed with the supporting affidavit, which is not done; and

e. There is no explanation for the non-compliance of the relevant rules.

f. The defendants are unable to show the merit of the appeal, let alone a strong appeal.  See §9(6) of Star Play.

g. I am not even able to start considering the defendants’ case.

11.  The defendants’ application is therefore dismissed.

Costs

12.  As to the costs of this application, including the costs for today’s hearing, I have heard the submissions from counsel and I consider that the costs should follow the event. I have the schedule of costs from the plaintiff.  I agree with Ms Chan for the defendants that the plaintiff’s costs are very much inflated.  On a broad-brush approach, the costs for the plaintiff, including the hearing today (with counsel’s certificate) should be $24,500 to be paid by the defendants within 14 days from the date hereof.

Order

13.  I shall make an order in terms as follows:

a. The defendants’ application be dismissed;

b. Costs of this application, including the costs for today’s hearing be $24,500 to be paid by the defendants to the plaintiff within 14 days from the date hereof.