XCHRX WELLSTECH INTERNATIONAL LTD. v. EARNTRUTH LTD.

HCA 21682/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 21682 OF 1998

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D E C I S I O N

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1. This is an application under O. 45, r. 11 of the Rules of the High Court for an order that there be a stay of execution of the judgment dated 11th May 1999 until the determination of the Defendant's appeal returnable on 23rd July 1999.

2. On 11th May 1999, Master Muttrie gave judgment under O. 14 against the Defendant for an order for vacant possession of the premises described in the Statement of Claim. He also gave judgment against the Defendant for sums of money being arrears of rent, arrears of management fees, arrears of general maintenance expenses, arrears of charges for replacement of spare part in lift, mesne profits at the rate of HK$620,000.00 per month from 11th January 1999 to date of delivery of vacant possession and other money payments.

3. O. 45, r. 11 makes it plain that a party may apply to the court for a stay of execution of the judgment or order "on the ground of matters which have occurred since the date of the judgment or order". It has been held by Hunter J. (as he then was) in A4736 of 1985 by his decision dated 20th October 1986 that "on the ground of matters which have occurred since the date" refers to matters which go to the validity of the judgment, and which if established before the court, might justify the court in saying that, this is not a judgment which on the material now placed before it, it will allow to be executed upon.

4. I am of the view that I have no jurisdiction to make the order sought under O. 45, r. 11 because the application that is made and the evidence put forward simply does not come within the terms of O. 45, r. 11. In the circumstances, this application is dismissed with costs.