RHONDA JEANINE POHN (SUING PERSONALLY AND IN HER CAPACITY AS THE SPECIAL ADMINISTRATOR OF THE ESTATE OF MAXWELL POHN, DECEASED) v. MAC RICHARD POHN AND OTHERS

HCMP 3439/2015

MISCELLANEOUS PROCEEDINGS NO. 3439 OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 1381 OF 2010)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  In this action, To J gave judgment in favour of the Plaintiff on 20 November 2015. After that, parties applied to him for some further orders. To J heard those applications on 18 December 2015. In the meantime, the 1^st Defendant served a notice of appeal against the judgment of 20 November 2015.

2.  The 1^st Defendant now applies to this court by a summons of 29 December 2015 for the following relief,

“ Leave to Appeal and a stay of execution of the 2 Orders of Hon Justice To on 18 December 2015 that the Order to surrender the share in D2 be stayed, and for Costs NISI be varied as cost on cost basis not indemnity basis until the outcome of the Appeal CACV 269/2015 already set down on 11 December 2015. Further we ask for the summons filed by the Plaintiff on 17 Dec 2015 be stayed or struck out as our Appeal has been set down and if Plaintiff is granted the relief sought it will prejudice the defendant

(1) The Defendant(s) do have leave to appeal (out of time) against the judgment/order of Hon Justice Mr To given on the 20 day of November of 2015.

(2) For Leave to Appeal and a stay of orders 18 Dec 2015.”

3.  The summons is rather confusing because To J did not make an order to surrender the share in the 2^nd Defendant on 18 December 2015. On that date, To J made 2 sets of orders. The first set of orders was made on the summons of  the 1^st Defendant of 4 December 2015 asking for leave to appeal and for the costs order nisi made by To J in his judgment of 20 November 2015 to be stayed until the outcome of appeal. To J refused to stay the costs order nisi and made it absolute. He also refused the stay of execution of that costs order.   

4.  The second set of orders was made on the summons of Plaintiff of 14 December 2015 seeking directions for the taking of an account pursuant to the judgment of 20 November 2015. On 18 December 2015, To J gave directions accordingly.

5.  The order to surrender the share was made by To J as part of the judgment of 20 November 2015. The 1^st Defendant had not made any application for stay of that order before To J. In accordance with Order 59 Rule 14(4), such an application should normally be made first to the court below. We do not see any special circumstances warranting this court to permit the 1^st Defendant to depart from such practice in the instant case. We are not minded to entertain that application without the benefit of the views of To J on the same.

6.  Regarding the first set of orders made on 18 December 2015, we agree with Mr Yin, counsel for the Plaintiff, that as the costs order had been made absolute, an appeal against that costs order should be canvassed in the main appeal. We also do not see any basis for ordering a stay of execution of that costs order.

7.  Regarding the second set of orders made on 18 December 2015, it is essentially a matter of case management in giving directions for the taking of account. This court has said repeatedly that we would not interfere with such discretion unless the decision is plainly wrong. We are not persuaded that the directions given were plainly wrong.

8.  We therefore refuse to grant leave to appeal in respect of the orders of 18 December 2015. The application for the stay of those orders is also dismissed.

9.  We also agree with Mr Yin that this court does not have original power to stay the summons of 17 December 2015. As a matter of fact, we understand that summons had been dealt with by To J on 15 January 2015.

10.  We are of the view that the application is totally without merit and we make an order pursuant to Order 59 Rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

11.  As for costs of the application, we order the 1^st Defendant to pay the costs of the Plaintiff. The Court of Appeal usually deals with costs of paper applications for leave by way of summary assessment. Unfortunately, solicitors for the Plaintiff have not submitted statement of costs for our consideration in the present case. In the present case, doing the best we can, we would assess the costs of the Plaintiff at $50,000.