SUNBROAD HOLDINGS LTD v. ALL OCCUPIERS (whose names are unknown) AND OTHERS

HCMP 1852/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1852 OF 2008

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D E C I S I O N

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1.  There are two applications before me this morning, both made by the 3^rd Defendant by summons dated 18 August 2011: (i) a stay of execution of the judgment dated 24 June 2011 pending the 3^rd Defendant’s appeal against the said judgment, and (ii) a variation of the costs order nisi made by me on 24 June 2011 that the Plaintiff shall have the costs of the action, including the costs of the application by the Plaintiff by summons dated 17 January 2011, against the 3^rd Defendant, to be taxed if not agreed.

2.  The basic facts of this case are set out in my written judgment dated 24 June 2011 and I shall not repeat them here.

3.  In respect of the application for stay of execution of the judgment pending appeal, the applicable principles are well established.  They are set out in the often quoted judgment of Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd (HCA 4726/2001, 7 June 2001).

4.  I have to ask myself whether good reasons exist for granting a stay pending appeal.  Two factors are significant, first whether the absence of a stay would render the appeal nugatory, and second the merits of the appeal.

5.  On the question of whether the absence of a stay would render the appeal nugatory, I take into account the fact that the judgment requires the 3^rd Defendant to demolish or remove the “Structures” attached to the “External Wall” referred to in paragraphs 3 and 5 of the written judgment.  These Structures were erected by the 3^rd Defendant during the period from 1972 to 1986 and have been used by the 3^rd Defendant in connection with his business for many years.  It will be recalled that it was Mr Liu’s argument for the 3^rd Defendant that he has acquired title to half of the thickness of the External Wall as well as the surface of the External Wall by way of adverse possession.  If a stay of execution is not granted, in theory it is possible for the Plaintiff to demolish the External Wall or make changes to it (or its surface) in such a way that it would become difficult or impossible for the 3^rd Defendant to resurrect the Structures or attached them to the External Wall even if he should ultimately be successful in his appeal.  I consider that the absence of a stay may render the appeal nugatory.

6.  In relation to the merits of the appeal, I am prepared to accept that the appeal is reasonably arguable.

7.  Finally, I take into account the 3^rd Defendant’s long usage of the Structures.  The Plaintiff says that the 3^rd Defendant is now 83 years old, and suggests that it has a legitimate concern regarding enforcement of judgment.  I am told that the appeal will be heard on 2 March 2012, which is about 7 months from today.  I do not think it is right to refuse the 3^rd Defendant’s application for stay pending appeal merely because of his age, and I do not think it is necessary to say anything more about this aspect.  There is no other suggestion that the Plaintiff will suffer any prejudice should the 3^rd Defendant’s Structures be permitted to remain in the meantime pending his appeal.

8.  In the circumstances, I shall grant a stay of execution of the judgment pending the 3^rd Defendant’s appeal.

9.  On the question of costs, the 3^rd Defendant’s argument is that since the Plaintiff has failed in the Order 14A application, the Plaintiff should only have two-thirds of the costs of the application.  The Plaintiff’s various applications under Order 14 Rule 1, Order 14A Rule 1 and Order 18 Rule 19 of the Rules of High Court can, I think, be treated as one application.  There was only one hearing which resulted in a judgment giving the most important relief to the Plaintiff.  I do not consider it appropriate in the circumstances to disallow any part of the Plaintiff’s costs and would dismiss the application to vary the costs order nisi.

10.  I order that the costs of the application for stay pending appeal be in the cause of the appeal, and the costs of the application to vary the costs order nisi be to the Plaintiff.  For the benefit of the taxing master, the costs of today’s hearing shall be apportioned equally between the two applications.