LAM GEOTECHNICS LTD. v. MARIA JUSTINE MILICICH AND ANOTHER

HCA 158/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 158 OF 2002

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D E C I S I O N

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1. This is the Defendants' ex parte application for stay of execution of the mandatory injunction order made by Muttrie DJ on 25 January 2002. The mandatory injunction order requires the Defendants to deliver up:

(1) data obtained by the Defendants under an agreement between them and the Plaintiff for the collection of data for use in the 5-year contract entered into between the Plaintiff and the Hong Kong Government for field sampling and laboratory testing for a contaminated mud pit adjacent to the Chak Lap Kok Airport;

(2) tissue samples obtained by the Defendants under the aforesaid agreement between them and the Plaintiff

(for details: see paragraph 5 of the written judgment dated 25 January 2002 of the learned Deputy Judge).

The said injunction order is conditional upon the Plaintiff paying into Court $125,500.00.

2. The nature of the dispute between the Plaintiff and the Defendants has been set out in the written judgment dated 25 January 2002. In short, the Plaintiff alleges that the agreement it made with the Defendants was merely on a "per event" basis whereas the Defendants allege in essence that the agreement was to last for the 5-year term provided for in the contract between the Plaintiff and the Hong Kong Government. Dispute developed between the parties when the Plaintiff notified the Defendants on 29 August 2001 that their services were no longer required. The Plaintiff commenced this action alleging that the Defendants breached the agreement by failing to deliver up the matters now the subject matter of the injunction order. On the other hand, the 1st Defendant commenced an action in the District Court claiming loss and damages for the Plaintiff's alleged breach of that agreement. The amount of payment demanded by the Defendants was $346,250.00. When the matter came before the learned Deputy Judge, the Plaintiff has made an open offer in the sum of $125,500.00 but that was not accepted by the Defendants.

3. The basis upon which the Defendants bring the present application is that their intended appeal would be rendered nugatory if a stay of execution is refused.

4. The only argument put forward at today's hearing in support of that is if the order is complied with before the appeal is heard by the Court of Appeal, the appeal would become academic. That may well be so but one has to bear in mind 2 things:

(a) the costs order made by the learned Deputy Judge regarding the Plaintiff's application for an injunction order may still warrant consideration by the Court of Appeal in the intended appeal;

(b) it is the Defendants' own case that the matters ordered by the learned Deputy Judge to be handed over to the Plaintiff are the properties of the Hong Kong Government and there is no claim (whether at the time of the hearing before the learned Deputy Judge or today) that the Defendants were or are entitled to retain them

(see paragraph 16 of the written judgment dated 25 January 2002)

5. Whether to grant a stay of execution is a matter of discretion and in view of the circumstances set out above, I consider it appropriate to exercise my discretion to refuse to grant the stay sought at today's hearing.