TUNG CHI WING CO LTD v. FAR EAST STRUCTURAL STEELWORK ENGINEERING LTD

HCA 56/01

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 56 OF 2001

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J U D G M E N T

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1. This is an appeal from the order of Master Kwan given on 9 March 2001 when she refused to order a stay of execution of the default judgment entered on 6 February 2001 in favour of the plaintiff for the amounts stipulated therein pending the determination of the defendant's summons dated 24 February 2001 to set aside the default judgment.

2. On 6 January 2001 the writ of summons was served on the defendant by leaving the same at the registered office of the defendant. The default judgment was entered on 6 February 2001.

3. On 24 February 2001 the defendant's solicitors issued a summons seeking to set aside the judgment.

4. On 8 March 2001 the defendant's solicitors took out another summons returnable on the same day as the summons to set aside namely, 9 March 2001, seeking a stay of execution pending determination of the summons to set aside.

5. On 9 March 2001 Master Kwan adjourned the application to set aside the judgment for argument. The application for stay of execution was dismissed.

6. I am told that the application to set aside the judgment has now been fixed for hearing on 11 May 2001. The defendant seeks a stay of execution until the hearing of that summons. The defendant relies on the inherent jurisdiction of the court. I am satisfied that the court has inherent jurisdiction to stay execution.

7. For the plaintiff it is argued that the principles governing stay of execution pending appeal should be applicable in this case. I disagree. This is not a stay of execution sought pending an appeal where the plaintiff has obtained a judgment on the merits. Different considerations apply where there has been a default judgment and a defendant is seeking to set aside that judgment. That application has not yet been heard but will shortly be heard on 11 May 2001.

8. I see no prejudice to the plaintiff if there is a stay of execution until the adjourned hearing of the summons to set aside the judgment. In the circumstances, in the exercise of my discretion, I think there ought to be a stay of execution in favour of the defendant until the summons to set aside is heard on 11 May 2001. The appeal is allowed and I grant a stay of execution until the adjourned hearing of the summons to set aside on 11 May 2001.