RIDGE LTD v. GOLDEN CASTLE LTD

HCA 122/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 122 OF 2005

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D E C I S I O N

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1. This is an application by the defendant by summons dated 15 July 2005 for an order that the orders made by Master Au-yeung on 29 June 2005 be stayed pending the appeal fixed for hearing on 5 August 2005. 

2. Mr. Wong, for the plaintiff, takes a preliminary point that the summons is misconceived. 

3. As is apparent from the submissions and the documents in the bundle placed before me, the defendant issued its notice of appeal on 6July 2005.  On 8 July 2005 the defendant issued a summons returnable before Master Au-yeung for a stay of execution of the two orders made by her on 29 June 2005 pending appeal which has been fixed for 5 August 2005.  That summons was issued under O.47, r.1. 

4. The summons before me is also for a stay of execution pending appeal also issued under O.47, r.1. 

5. Master Au-yeung dealt with the application before her for a stay on 13 July 2005.  After hearing submissions she dismissed that application. 

6. Instead of appealing her order for dismissal of that application the plaintiff applies by summons before me for the same relief and on the same grounds.  It is stated at para. 47/1/2 of Hong Kong Civil Procedure 2004 that :

“Where an application has been made for a stay of execution under O.47, r.1 and dismissed, the judgment debtor cannot make a further application on the same grounds; the remedy for challenging the adverse order is by way of appeal to a court of higher jurisdiction (Sanyo Electric Trading Co. Ltd v. Leung Kwok Hing [1993] 1 H.K.L.R. 253 at 256-257).”

7. I accept the submission of Mr. Wong that the summons before me is misconceived.  Having heard the submissions made to me I am satisfied that the summons has to be dismissed.