HAI KUO SHIPPING 1201 LTD v. EVERWIN SHIPPING (HONG KONG) CO LTD AND OTHERS

HCAJ 79/2014

[2018] HKCFI 2080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY ACTION NO. 79 OF 2014

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D E C I S I O N

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1.  This is the 3^rd Defendant’s Summons for stay of execution of the Judgment dated 11 July 2018. I shall regard the 3^rd Defendant’s appeal against the Judgment as an application for the Judgment to be set aside pursuant to O 35, r 2.

2.  The 3^rd Defendant accepts that he was aware of the trial, but he asserts that he was unable to attend the trial due to a back problem which rendered him bedridden.

3.  I am afraid this is a bare assertion by the 3^rd Defendant which is not supported by a single piece of independent evidence.  In particular, he is the sole director of the 1^st Defendant.  As noted in the Reasons for Judgment dated 31 August 2018, the 1^st Defendant was purportedly represented by a Mr Zhu at the beginning of the trial. 

4.  There was no indication whatsoever, despite the court having attempted to elicit from Mr Zhu the purpose of his attendance on that day, that he was in any way representing the 3^rd Defendant.  Had there been any truth in the 3^rd Defendant’s suggestion that he was unable to attend the trial, one would expect, as a matter of simple common sense, Mr Zhu to have indicated to the court that he represented the 3^rd Defendant and he would like to inform the court that the 3^rd Defendant was unable to attend court for whatever reason.

5.  Further, having listened to the 3^rd Defendant, I am unable to see any merit in his case.  In particular, he acknowledges, quite rightly, that the Plaintiff’s case against him was based on contractual documents and that such documents were valid.

6.  It must also be said that insofar as whether any valid ground existed for challenging the contractual documents, the 3^rd Defendant had the benefit of legal representation previously by very experienced counsel, as one can see from the Amended Defence and Counterclaim.

7.  I am unable to see why the court is entitled to go behind the contractual documents and somehow relieve the 3^rd Defendant from his liabilities under the guarantee in question.

8.  I should say that there is an allegation in the Notice of Appeal that the quantum of the Plaintiff’s case was not investigated by the court.  I am afraid that it was not the case.  The quantum of the Plaintiff’s case was scrutinized by the court before Judgment was given despite the absence of the Defendants.

9.  There is considerable force in Ms Lok’s submissions that if the Judgment is to be set side it would entail another 10-day trial and obvious delay to the resolution of these matters.  Such a situation would simply be unjust to the Plaintiff.

10.  For these reasons, I would not accede to the application for a stay of execution.