XCHRX AACHEN (ASIA PACIFIC) CONSULTANTS LTD. v. KHOO EE LIAM

HCA 14815/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 14815 OF 1999

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D E C I S I O N

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1. This is an application for a stay of execution of the judgment obtained by the plaintiff against the defendant pending appeal. The plaintiff obtained judgment in default for the sum of A$4,322,468.30 or its HK dollar equivalent at the time of payment together with interest and costs. The defendant applied to set aside that judgment. On 28 March 2001, Master Jones dismissed the defendant's application. A notice of appeal has been filed against that decision and the appeal is to set down for hearing on 11 July 2001. In the meantime, the defendant seeks a stay of execution of the judgment pending appeal.

2. As has been submitted by Mr Cheung, the appeal to a judge in chambers is by way of re-hearing. Notwithstanding this, O.58 r.1(4) makes it plain that except so far as the court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought. An almost identical provision is provided in O.59 r.13 in respect of appeals to the Court of Appeal. Despite the able submissions of Mr Cheung, counsel for the defendant, I am of the view that the starting principle for the application for stay made here is the same as for appeals under O.59 namely, that the successful party should not be deprived of the fruits of the judgment in his favour. Of course, whether or not a stay should be granted is discretionary. But that starting principle must be firmly borne in mind.

3. The fact that it is said that the defendant's appeal is a strong one is not a special circumstance to justify a stay of execution (See Union Bank of Finland v. Lelakis, unreported Judgment dated 31st July 1995, English Court of Appeal and Winchester Cigarette Machinery Limited v. Payne & another (No. 2), English Court of Appeal Judgment dated 10th December 1993, The Times 15 December 1993).

4. In this case I am told that the defendant is willing to provide security as a condition for stay and I have been told that that is acceptable to the plaintiff provided a condition is imposed. In those circumstances, I will grant a stay of execution on the condition that the defendant pays into court in an interest bearing account the judgment sum namely, the sum of A$4,322,468.30 within 7 days.