NG TUNG v. GRAND WAYFAIR INVESTMENT COMPANY LTD

HCA 1682/2017
HCA 2531/2017
(heard together)

[2026] HKCFI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1682 OF 2017

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BETWEEN

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AND

ACTION NO 2531 OF 2017

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BETWEEN

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REASONS FOR DECISION

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The Application

1.  This is the Plaintiff’s application, by summonses made on 27 October 2025, for a stay of execution of my Decision of 7 October 2024 (“Decision”), pending appeal (“Stay Summonses”).

2.  The Stay Summonses were heard on 13 January 2026. At the conclusion of the hearing, this Court dismissed the Stay Summonses with costs. The following sets out my reasons for the decision.

3.  The background facts are set out in my Decision. In short, during the course of the trial of HCA 1682/2017 and HCA 2531/2017, the parties submitted a Consent Summons and an order was made for all further proceedings to be stayed upon the terms set out in the Schedule to the Tomlin Order (“Schedule”). The Schedule was signed by the Plaintiff and by each of the Defendants.

4.  The Plaintiff later failed to comply with the Schedule and opposed its enforcement, alleging that he had been intimidated and pressured into the settlement and had signed under his lawyers’ duress and undue influence.

5.  In my Decision, I found that the Plaintiff had not established any case of duress, pressure or undue influence which could vitiate his consent to the settlement terms. There was therefore no ground for the Plaintiff to assert that the Defendants should not be allowed to enforce the terms of the settlement agreement. I accordingly granted the Defendants’ application to enforce the settlement terms in the Schedule.

6.  By two summonses both dated 21 October 2024 (“1^st Applications”), the Plaintiff applied for leave to appeal the Decision, stay of execution pending appeal, and leave to adduce further evidence on appeal.

7.  In my Decision of 5 June 2025, I dismissed the 1^st Applications, on the basis that the requirements of Ladd v Marshall [1954] 1 WLR 1489 were not satisfied.

The Stay Summonses

8.  The sole justification now advanced by the Plaintiff in support of the Stay Summonses is that, after the Decision was handed down on 7 October 2024, he discovered that his then legal representatives had provided negligent advice, with the result that he was not fully informed about the nature of the Schedule or the order to be made by the Court; and that if he had been properly advised, he would not have entered into the settlement agreement. The application relies on Order 45 rule 11 RHC.

9.  Order 45 rule 11 states that a party may apply for a stay of execution of a judgment or order or other relief “on the ground of matters which have occurred since the date of the judgment or order”. These must be “matters which went to the validity of the judgment and which, if established before the court, might justify the court in saying that this was not a judgment which on the materials placed before it, it would allow to be exercised”: Tam Ho Man v Wong Kwok Fai [1986] HKLY 705.

10.  The most important consideration in respect of whether a stay of execution should be granted in the above circumstances is whether there are grounds for the proposed appeal. That hurdle is higher than that appliable to an application for leave to appeal, where reasonable prospects of success have to be shown. The court will not grant a stay under Order 45 rule 11 unless it is satisfied that there are good reasons for doing so. In Credit Lyonnais v SK Global Hong Kong Ltd, CACV 167/2003 (cited at para 45/11/2 of the Hong Kong Civil Procedure 2026), it was emphasized that the jurisdiction to stay execution is “exceptional” in nature.

11.  I am not persuaded that the matters raised by the Plaintiff justify the stay of execution sought. The Plaintiff’s complaints concern alleged negligence by his own lawyers; they are not directed at the Defendants or anyone acting for the Defendants. Nor does the Plaintiff suggest that the Defendants were under any duty to advise him. I cannot see how any alleged negligence on the part of the Plaintiff’s lawyers can affect the validity of the settlement agreement which the Plaintiff entered into, or provide a basis for him to rescind that agreement as a result of the legal advice he was given. Any remedy which the Plaintiff may have lies against his own legal representatives, not against the other parties to the agreement.

12.  There are no prospects of success in the Plaintiff’s appeal, and no good reason to stay execution.

13.  The Plaintiff further contends that, absent a stay, any remedy that he may ultimately obtain on appeal would be rendered nugatory. Under the Schedule, he would have to deliver vacant possession of Lot 78, which entails terminating the existing lease with his tenant and removing the crops from the land. He maintains that the removal of the crops is irreversible and that the resulting loss cannot be adequately compensated in monetary terms. However unfortunate the Plaintiff’s position, if he has no cause of action, then the Court cannot grant him any relief against the Defendants.

14.  A successful party such as the Defendants in this case should not be deprived of the fruits of their success. It is not just and there is no reason to undermine the Defendants’ entitlement by matters which, even on the Plaintiff’s own case, are not their fault. Furthermore, as counsel for the Defendants pointed out, the Plaintiff’s claim that he cannot be compensated in monetary terms is inconsistent with his own application to the Court of Appeal for leave to appeal, in which he has quantified his alleged loss in monetary terms.

15.  Counsel for the Defendants also highlighted the fact that in his supporting affirmations for his 1^st Applications, the Plaintiff had stated that he only discovered the “Crown Lease Schedule” when he inspected the documents at the High Court Registry on 16 October 2024. However, in a complaint form dated 26 June 2024 to the Hong Kong Bar Association, the Plaintiff stated that he had already conducted a search at the Land Registry and found that the size of the relevant land lots in the settlement agreement was smaller than the official record. These discrepancies in the Plaintiff’s own evidence give rise to doubts as to the reliability of his claims.

16.  By reason of all the foregoing matters, I am not satisfied that the Plaintiff has shown that good reasons exist for granting a stay.

Disposition

17.  This Court accepts the submissions made by counsel for the Defendants, that the Plaintiff had no proper basis for issuing the Stay Summonses, this being the second occasion on which he has brought to the Court an application which has no merits.

18.  The Plaintiff’s Stay Summonses were accordingly dismissed, with costs to be paid by the Plaintiff to the Defendants on an indemnity basis, to be summarily assessed.

19.  I directed the Defendants to serve their statement of costs on the Plaintiff, who has liberty to file and serve its statement of objection within 7 days thereafter.