XCHRX SILVERLINK (HONG KONG) FINANCE LTD v. ZHANG SABINE SOI FAN

HCA 2783/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This is an application for a stay of execution pending appeal from the judgment given by Master Bennett on 8th October 1998. The Plaintiff's claim against the Defendant in this action is for non-payment of a cheque drawn by the Defendant in the sum of $38,743,600.00 as pleaded in the Statement of Claim. The Plaintiff applied for summary judgment on 24th March 1998. On 8th October 1998 Master Bennett dealt with that application. He ordered that judgment be entered in the sum of $7,000,000.00 to the Plaintiff and gave unconditional leave to the Defendant to defend the balance with costs in the cause and with certificate for counsel. The Defendant has filed a Notice of Appeal dated 13th October 1998 from that decision contending that unconditional leave to defend should be given to the whole claim.

2. Counsel for the Defendant has submitted that there was nothing in the Statement of Claim to support the judgment in the sum of $7,000,000.00. He correctly, in my view, points out that the Statement of Claim is on a cheque in the sum of $38,743,600.00. There is no other claim pleaded either as a primary claim or an alternative claim. And in so far as judgment has been given in the sum of $7,000,000.00, it seems to me that the Defendant has reasonable prospects of success on the appeal.

3. The appeal has been set down for hearing on 18th January 1999 which is about 7 weeks away. So, in that regard, the period of stay of execution that is sought is a short period.

4. The Defendant has affirmed that she does not presently have any sufficient means to meet the judgment sum of $7,000,000.00 or any lesser amount, and also that she does not have any landed properties which the Plaintiff could execute upon. She also says that if there is no stay her business reputation and standing in the eyes of her business associates would be ruined.

5. In the exercise of my discretion as the period between now and the hearing of the appeal is only 7 weeks away, I grant the Defendant a stay of execution particularly, in view of the fact that the Defendant has reasonable prospects of success in the appeal. I think the costs should be costs in the appeal. I make an order in terms of the summons dated 21st October 1998.