TANG MOON LAM , the person appointed to represent the estate of TANG SHAU KI, deceased v. TANG YING YEUNG

HCA 1055/2014

[2019] HKCFI 2328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1055 OF 2014

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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  This Court handed down judgment in this action on 15 May last year (“Judgment”) and I will adopt the same definitions and abbreviations in the Judgment, unless otherwise indicated herein.

2.  Pursuant to the Judgment, it was adjudged that D was to, amongst other things, deliver up vacant possession of Lot 1 to P within 3 months from the date of the order and to demolish the New House which D had caused to be erected on Lot 1. 

3.  D lodged a notice of appeal on 1 June 2018 and his appeal has now been fixed for hearing on 25 September 2019, which is in a week’s time.

4.  D failed to comply with the deadline imposed in the Judgment, nor did he issue any application for stay of execution prior to the expiration of the deadline.  In fact, it was only after P issued a summons on 12 July 2019 for an order that D do forthwith comply within one month with paragraph 2 of the Order, ie to demolish the New House (“Enforcement Summons”), that D issued his present summons for stay of execution (“Stay Summons”). Further, the date of the hearing of the appeal was fixed after P issued the Enforcement Summons.

5.  At the hearing, I granted the stay as sought by D in the Stay Summons and further adjourned the Enforcement Summons sine die with liberty to restore after the determination of the appeal.

6.  My brief reasons are set out hereinbelow.

7.  The principles governing an application for stay have been set out by Ma J, as he then was, in his judgment in Star Play Development Ltd v Bess Fashion Management Co Ltd, HCA 4726/2001, 7 June 2002.

8.  In particular, Counsel for D, Mr Ko, had referred this Court to paragraph 9 (1) of Star Play :-

“In determining the question whether or not an appeal would be rendered nugatory, the court must of course first have regard to the nature of the order that is the subject matter of the appeal. If the order appealed against is a money judgment, the court will require evidence as to why the levying of execution will result in the appeal being rendered nugatory, such as, for example, an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal. Sometimes, though, the nature of the order will by itself almost be determinative of the question. Where the relevant order is, for example, an injunction (and particularly so if it is a mandatory injunction), it may well be that, without a stay, an appeal would be rendered nugatory in the event of a successful appeal. Similarly where, as in the present case, the relevant order is one for the possession of premises, again it can readily be appreciated that without a stay of execution, more often than not, it is likely than an appeal would be rendered nugatory : see Ketchum International plc v Group Public Relations Holdings Limited [1997] 1 WLR 4, at 10H.” (emphasis added)

9.  P had conceded that vacant possession should not be delivered pending appeal, but it was argued on behalf of P that the New House should nonetheless be demolished. It was P’s evidence that D and his family were not actually living in the New House and P said it was unjust for P to have the burden of dealing with the District Lands Office.  This was denied by D.

10.  Ms Kung submitted on behalf of P that the outcome of the appeal would not render an illegal structure legal.  At the hearing, Ms Kung also referred to a letter from the District Lands Office requiring the New House to be demolished. 

11.  However, the above letter from the District Lands Office was dated 21 November 2012 and this was produced by D who explained in his affirmation that although the New House is an illegal structure, D understood that it would be possible to obtain a retrospective exemption without need of demolition but it would require the title issue to be resolved, that this would be the subject matter of the appeal next week.

12.  In any event, there had been no update since the above letter.

13.  Mr Ko submitted on behalf of D that the demotion of the New House would be more draconian and deleterious on D than the mere delivery of vacant possession.  I agreed with Mr Ko.  I further accepted his submission that the allegation that the New House was/is an illegal structure would not really take the matter further, and it would not be this Court’s function to enforce the Building Order on behalf of the District Lands Office in the present proceedings.

14.  Having considered the parties’ respective arguments, in light of the imminent hearing of D’s appeal, not allowing a stay of paragraph 2 of the Judgment and to order the demolition of the New House now would in my view render the forthcoming appeal nugatory in the event of it being successful.  I further accepted Mr Ko’s submissions that it would make no sense to compel the demolition of the New House at this stage.

15.  For all the above reasons, I granted a stay as sought by D until the determination of the appeal and ordered costs be costs in the cause of the appeal.

16.  So far as P’s Enforcement Summons was concerned, I was of the view that it should be adjourned sine die, with liberty to restore after the determination of the appeal.  Costs reserved.