SIMS TRADING CO LTD v. POON YEE PING STELLA t/a SUNSHINE AND CO

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JUDGMENT

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1. This is an application by the Defendant for stay of the execution and for setting aside the Bankruptcy Notice. In so far as the Bankruptcy Notice application is concerned, there is nothing in the application because it is clear to me that the requirements of Section 3(1)(g) of the Ordinance is not satisfied. Not only could the Counterclaim of the Defendant be set up in the Action, it was in fact set up.

2. As for the application for stay of execution, what is of paramount importance is to bear in mind that this is a summary judgment based on two cheques and the strong merits of the Counterclaim does not give rise to either leave to defend or to stay of execution pending the trial of the Counterclaim. In my judgment on the summary judgment given on the 7th April 1997, I dealt with the defence and also to a large extent with the matter of the Counterclaim. The Counterclaim in my view is not strong. But even assuming that there is a strong Counterclaim by the Defendant, nevertheless the rules are clear that no stay of execution on a cheque judgment should be given. I have been shown the 3rd and 4th Affidavit of the Defendant and I have heard strong argument from Mr. Hung on why I should exercies my discretion because there are exceptional circumstances so as to justify departure from the usual rule. I disagree. I do not see what are the special and exceptional circumstances which should compel the court to depart from the usual rule applicable to cheque case which is to give protection to the Plaintiff and treat cheques as cash. The applications of the Defendant is refused with costs. The Defendant's own costs are to be taxed in accordance with Legal Aid Regulations.