LIU WAI KEUNG v. LIU WAI MAN

HCA 1106/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1106 OF 2011

____________

____________

_____________

D E C I S I O N

_____________

1.  I have before me two applications this morning. In consequence of my judgment after trial of the action handed down on 30 September 2013, there is an application by the plaintiff by summons dated 15 October 2013 for payment of the sum of HK$5,000,095 out of court to the plaintiff via the Director of Legal Aid. There is also an application by the defendant by a recent summons dated 19 March 2014 for a stay of execution of the judgment pending the defendant’s appeal to the Court of Appeal in CACV 263/2013.

2.  By my judgment of 30 September 2013, I have held that the property, namely, Flat A9, on the 6th Floor, Kat Cheung Mansion, 217 Chat Tsz Mui Road, North Point, Hong Kong, was held by the defendant on trust for the plaintiff absolutely and that the plaintiff is entitled to the proceeds of sale thereof subject to the payment of outgoings and the costs of the sale.  The sale proceeds had in fact been paid into court by consent.  The plaintiff’s application for payment out therefore is simply a natural consequence of my judgment.  The substantive application today is therefore the defendant’s application for a stay by which she contends that notwithstanding the plaintiff’s success at trial, because of the existence of her appeal, the plaintiff should not have the benefit of the judgment until after the determination of the appeal.

3.  I am told that the appeal has been set down for hearing before the Court of Appeal in December this year.

4.  The principles relevant to an application for stay are not in dispute.  They have been set out in the decision of Mr Justice Ma, as he then was, in Star Play Development Limited v Bess Fashion Management Company Limited [2007] 5 HKC 84 and, more recently, in the Court of Appeal’s decision in Toeca National Resources BV v Baron Capital Limited [2013] 5 HKLRD 178.

5.  The first matter for the court to enquire into is the merits of the appeal.  Without going deeply into a consideration of the arguments of the appeal, I must nevertheless try to form a preliminary view of the strengths of the appeal.

6.  The notice of appeal in this case, dated 9 December 2013, contains three grounds. 

7.  The first ground contends that there is no evidence, or no credible evidence, in support of my finding that the plaintiff provided the funds for the purchase of the property.  There is of course the plaintiff’s own evidence that he provided the funds and so the ground seems to me to boil down to a contention that I should not have believed the plaintiff and should not have accepted his evidence as credible evidence.  That seems to me to be a question relating to a finding of a primary fact that turns, inter alia, upon the question of credibility of witnesses.

8.  The second ground contends that I have erred in not granting allowance to the defendant when criticising her evidence when I had granted allowance to the plaintiff on the ground of lapse of time.  Again, this grounds purports to challenge my findings of primary fact.  It also seems to me that in criticising the defendant’s evidence in my judgment I was not referring to her evidence on the detailed mechanics of the payments but in relation to what seemed to me to be more fundamental matters. In any event, these are questions of primary facts and, as is well established, the Court of Appeal will only disturb such findings in very sparing circumstances.

9.  Ms Kei for the defendant argues that grounds 1 and 2 do not seek to challenge the court’s findings of primary facts but the inferences and conclusions of this court.  I am unable to agree with that submission.

10.  It seems to me that the matters being challenged are squarely and fairly findings of primary fact and I am wholly unimpressed by the matters put forward in the notice of appeal for impugning those findings.

11.  Ground 3 of the notice of appeal contends that I erred in law in holding that the limitation defence is not available to the defendant.  Neither the notice of appeal nor Ms Kei’s argument before me today raises any further argument that I have not dealt with in my judgment, where I said at paragraph 119 that I had no hesitation in rejecting the argument.  I remain of the view that the defendant’s argument is bad in law and not properly arguable.

12.  This would have been sufficient to dispose of the defendant’s application this morning but for completeness I should mention that Ms Kei also argues that there is a possibility that the appeal would be rendered nugatory in that there is a possibility that the money released to the plaintiff would all, or substantially, be spent by the plaintiff between now and the determination of the appeal. 

13.  On the materials before me, I see no basis for saying that there is any real risk of the appeal being rendered nugatory.  It seems to me that the defendant’s fear is based on speculation without regard to the fact that it is, after all, prima facie, the plaintiff’s money that we are concerned with.

14.  For these reasons the defendant’s application is dismissed and there will be an order in terms of paragraph 1 of the plaintiff’s summons dated 15 October 2013.

(Submissions on costs)

15.  I will order that the defendant pay the plaintiff’s costs in relation to both summonses and that the parties’ own costs be taxed in accordance with the Legal Aid Regulations.