XCHRX SHANGHAI ORNATE CANDLE ART CO. LTD. v. TRANSBEST HOLDINGS LTD. t/a ACME CO.

HCA1605/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1605 OF 1999

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J U D G M E N T

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1. The Defendant applied to set aside the judgment in default that had been entered against it. Ms Registrar Chu at a three-minute hearing adjourned the application for argument and stayed the execution of the judgment until the determination of the argument which is now fixed on 16th June 1999.

2. The Plaintiff appeals against the decision to stay the execution of the judgment. It is submitted by Mr Ching that the Defendant has no real defence to the claim of the Plaintiff. The defence raised is in the nature of a set-off in respect of another transaction that had been entered into between the parties. The dispute in respect of that transaction should be subject to arbitration. In the circumstances, there should not be a stay of execution of the judgment.

3. At this stage, I am only concerned with whether the discretion had been wrongly exercised or not. The Plaintiff has not appealed against the decision to adjourn the hearing of the argument. In any event, the question of whether the Defendant has any bona fide defence, obviously has to be adjudicated in due course. What is clear is that the Plaintiff is a foreign company, serious problems of recovery of money will arise if the judgment sum is now paid to the Plaintiff. In my view the Registrar had rightly exercised the discretion by staying the execution of the judgment.

4. The appeal is accordingly dismissed.