NTT DATA HONG KONG LTD v. OCTO3 LTD AND ANOTHER

HCA 3446/2016

[2018] HKCFI 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3446 OF 2016

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AND

HCA 44/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 44 OF 2017

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(heard together)

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D E C I S I O N

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1.  The starting point must be that an appeal does not operate as a stay of execution, and a successful litigant should not be deprived of the fruits of the litigation without a good reason. Unless the applicant can justify a stay by showing good reasons, a stay would not be ordered. That is trite.

2.  I am not satisfied that there are strong grounds of appeal to constitute a good reason for the grant of a stay.

3.  As to whether the appeal would be rendered nugatory, and the effect an immediate execution would have on the appellant as alleged, I bear in mind that audited accounts have been filed for the 2015 financial year only.  There are no audited accounts for the financial year 2016, and only management accounts have been filed for 2017.  No explanation has been given for the amounts owing to the related companies as shown in the 2015 accounts. 

4.  Balancing that against the interests of NTT as the judgment creditor to have its debt paid without further delay and risks of non-recovery, I will reluctantly grant a stay pending appeal conditional upon Otto3’s payment into court within 14 days from today of 50% of the judgment debt of US$2.55 million.

5.  The costs of the application will be in the cause of the appeal, provided that the condition of payment into court is met, failing which Otto3 should paid the costs of the application to NTT.