JADESPRING LTD (AS TRUSTEE AND/OR AGENT FOR AND ON BEHALF OF DAH SING BANK) v. RISE TOP ASSET MANAGEMENT LTD AND ANOTHER

CACV 425 & 426/2025, [2025] HKCA 902

On appeal from [2025] HKCFI 2310

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 425 AND 426 OF 2025

(ON APPEAL FROM HCA NOS 2039 AND 2040 OF 2023)

________________________

(Heard together)

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is an application by the defendants (separately “D1” and “D2”) for stay of execution of the order of Tam J made on 30 May 2025 (“Order”) granting summary judgment to the plaintiff in two actions, HCA 2039/2023 and HCA 2040/2023, pending the defendants’ appeal against the Order.

2.  The defendants sought a stay pending appeal before the judge by summonses issued on 15 August 2025.  The judge refused the application on 22 September 2025 after a hearing on 17 September 2025 (“Stay Decision”)^[1]. The defendants renew their application to the Court of Appeal by summonses issued on 29 September 2025, invoking the concurrent jurisdiction of the appeal court to grant stay of execution.  We deal with this application on paper on an urgent basis as we are given to understand that the winding-up petition presented by the plaintiff against D1 will be heard on 6 October 2025 and it was indicated by the court that if D1’s application for stay of execution is not successful, D1 will be wound up.

3.  By the judge’s decision of 30 May 2025 (“Decision”)^[2],the judge affirmed the summary judgment entered by Master Maurice Lam against the defendants in the two actions.  He allowed the plaintiff’s appeal against the Master’s order staying execution of the summary judgment for arrears of rent and fees until final disposal of the plaintiff’s claim for damages for breach of the tenancy agreements and set aside the stay order imposed by the Master.

4.  The total liability of the defendants under the Order and Decision amounted to $10 million odd.  D1 entered into the tenancy agreements with the plaintiff as the tenant of two houses on the Peak.  D2, who was then the sole shareholder and director of D1, guaranteed the payment of rent under the agreements.

5.  These lines of defence were raised unsuccessfully before the judge:

(1) The plaintiff has no locus standi to sue for rental arrears in light of clause 5.2(ii) in the rental assignment in which the plaintiff assigned to Dah Sing Bank Limited all its rights, title, benefit and interest to any moneys payable to the plaintiff by lessees of the land which includes the two houses;

(2) The rental assignment gave rise to an equitable assignment in favour of the Bank.  The plaintiff may only sue if (i) the Bank is joined as a party and if the Bank refuses to make a claim, the plaintiff can sue; or (ii) it is expressly stated that the plaintiff sues in a representative capacity as the trustee and with the consent of the Bank; and

(3) Even if the defendants fail in the locus challenge, the amounts of the summary judgment should be varied as the defendants will raise an equitable set-off.

6.  On 6 June 2025, the plaintiff issued statutory demands against the defendants on the judgment debt.  

7.  The defendants filed a notice of appeal in each action on 20 June 2025 (CACV 425/2025 and CACV 426/2025)^[3].

8.  On 7 July 2025, the plaintiff presented a petition to wind up D1 based on the demand for the judgment debt of over $10 million.  The defendants issued the summonses for stay pending appeal on 15 August 2025.

9.  The principles for granting stay of execution pending appeal are well established and will not be repeated^[4].

10.  For the purpose of the present application, we need only form a preliminary view of the merits of the grounds of appeal.  We are in complete agreement with the judge that the grounds of appeal are not reasonably arguable, for the reasons given in the Stay Decision.  The minimum requirement for granting stay of execution is not met.

11.  In any event, there is no additional reason for granting a stay even if we were to find the grounds of appeal arguable.

12.  There is no evidence on the financial condition of D1.

13.  D2 transferred his entire shareholding in D1 to the present sole shareholder and director in March 2023, not long before D1 ceased to pay rent for the two houses.  Despite his transfer of the entire shareholding and resignation as a director of D1, D2 was said to maintain “close business relationship” with D1 so much so that he acted on behalf of D1 in entering into the “Farmland Agreement” with Sino Ocean Ventures Limited (“Sino Ocean”) in November 2023, under which D1 would be paid $30 million as “finder’s fee” for each of the investments to be made by potential investors and D2 would have an equal share of this huge commission pursuant to an oral agreement between D1 and D2^[5].

14.  The “Farmland Agreement” is a one-page letter by D1 to Sino Ocean, stating that D1 has introduced and will introduce to Sino Ocean potential investors for the list of farm lands set out in a schedule thereto, that Sino Ocean will negotiate in good faith with the potential investors for entering into formal agreements, and confirming that D1 will act as finder for the investments for which it is to be paid a finder’s fee for each investment upon completion of the formal agreement by a potential investor.

15.  We treat the above assertions with considerable reservation.  For such an enormous and lucrative business transaction, it is difficult to believe that it would be handled in such an informal manner with minimum information, terms and conditions.  Nor do we see how the winding up of D1 would affect its entitlement to the finder’s fee for the introduction of potential investors already made, according to the “Farmland Agreement”. 

16.  We dismiss the summonses for stay of execution in each of the appeals.

17.  As the plaintiff has not participated in these applications, we make no order as to costs.

[1]  [2025] HKCFI 4498

[2]  [2025] HKCFI 2310

[3]  A supplemental notice of appeal was filed in each appeal on 29 September 2025.

[4]  Fung Shing Chung v Choi King Hung [2024] HKCA 1021 at §20, quoted in the Stay Decision at §3

[5]  Affirmation of Chow Hung Shen Andrew filed in HCA 2039/2023 and HCA 2040/2023 dated 15 August 2025, §16.