LAU TIN CHEUNG v. TIANJIN DEVELOPMENT HOLDING LTD

HCA 422/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 422 OF 2011

(Transferred from Labour Tribunal Case No. LBTC 331/2011)

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D E C I S I O N

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1.  The defendant applied for stay of execution pending appeal before the trial judge, Deputy Judge Sakhrani, with no offer of payment in and lost the application on 27 January 2015. It renewed the application before the Court of Appeal. That will be heard on 28 April 2015.

2.  One of the main grounds of the appeal is that there was no evidence on the plaintiff’s financial capability to exercise the option and hence the plaintiff failed to prove the quantum.  This was not pleaded by the defendant.  Deputy Judge Sakhrani did not accept the argument. This argument will be repeated before the Court of Appeal at the hearing of the appeal.  One of the points will be whether the plaintiff should provide evidence of his financial capability as part of his case.  The defendant now applies for an interim stay pending its application for stay before the Court of Appeal.  It also offered to pay the judgment sum into court within 14 days in return for the interim stay.

3.  Mr Lam refers me to Wendon Engineering Service Company Limited v Lee Shing Yue Construction Company Limited, HCCT 90/1999, dated 17 July 2002 and submits that a respectable argument in the appeal is not good enough, even for an interim stay pending an application for stay.

4.  I think the test for an interim stay pending an application for stay is slightly less stringent than that for an application for stay as adumbrated by the Chief Justice in Wendon Engineering Service. Now that there is a respectable argument to be ventilated by the defendant in the appeal and the defendant is prepared to pay the judgment sum into court, I think I should grant the defendant the interim stay.

5.  I therefore order that there be an interim stay of execution of the judgment until the disposal by the Court of Appeal of the defendant’s renewed application for stay on condition that the defendant do pay into court, into an interest bearing account, within 14 days, the judgment sum together with interest accrued up to the date of payment in.

(Submissions on costs)

6.  This application was made on the wrong footing. The defendant has to pay the plaintiff the costs of the application.  The plaintiff argued the application for interim stay and not the application as made.  The plaintiff did not take up any offer of adjournment or ask for any indulgence.  The plaintiff lost the argument and I order the plaintiff to pay the defendant the costs of today which includes counsel’s brief.  I also order that all costs be in any event.