蕭麗芳 v. GOODWIN CONSULTANTS t/a CENTURY 21, GOODWIN PROPERTY CONSULTANTS AND ANOTHER

DCCJ5881/2006

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5881 OF 2006

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D E C I S I O N

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1.  The plaintiff is appealing against 1. Master Lee’s costs order of 29 May 2008 out of time and; 2. the garnishee order absolute granted by Master Poon on 24 September 2008.  At the hearing today, she is absent.

2.  Miss Chan representing the defendant submits that there is no merit in the plaintiff’s appeals.  First of all, Master Lee’s 29 May order of costs was made after he dismissed the plaintiff’s application to stay the proceedings, when the parties had already reached a settlement of the action.  On that occasion, the plaintiff was absent at the hearing. 

3.  The order was made on 29 May 2008, the plaintiff lodged her appeal on 24 September 2008, five days short of four months after the order was made.  No reasons were given for the delay, which was inordinate.

4.  The first appeal is related to the second appeal because when the defendant failed to obtain payment of the costs from the plaintiff after the 29 May 2008 order, he applied to garnishee the costs amount from the plaintiff’s bank.  The garnishee order was made absolute on 29 September 2008 by Master Poon.  When the plaintiff lodged an appeal against Master Poon’s order making the order absolute, she put in a further appeal against the original order of costs by Master Lee on 29 May 2008 as a matter of convenience.

5.  The plaintiff had failed to make her appearance today and failed to prosecute her appeal in person by her absence.  By that fact alone, her appeals deserved to be dismissed.  Even if she is present today, I look at the merits of her appeals and do not think they are meritorious.  The orders and reasons given by Master Lee on 29 May 2008 are correct and rightly made.  Parties who have come to a settlement of the action have no cause to stay the proceedings unless very good reasons are given, but if the reason for making an application to stay is to delay the payment of the sums agreed in the settlement, the application to stay has no merits and should not be allowed.

6.  When a party failed to pay costs ordered of the judgment sum, the receiving party has a right to take up execution proceedings and one of such execution proceedings is the garnishee order application.  This was done by the defendant in the present case and the order absolute was made.  On this particular order, I find it was correctly and rightly made.  There is no reason for the plaintiff not to pay costs ordered by the master.

7.  I dismiss the plaintiff’s two appeals for the aforesaid reasons.  I also award costs to the defendants and gross sum assessed at $4,500.