Tang Chai on and Another v. Tang Sing Ki and Another

HCA 207/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 207 OF 2013

____________

____________

______________

D E C I S I O N

______________

1.This is the defendants’ application for stay of execution of the part of the judgment dated 8 May 2015 (“the May 2015 judgment”) which mandates a lot of land in Yuen Long to be sold and the proceeds of sale to be distributed. The stay application is opposed by the plaintiffs.

2.Further, the defendants earlier (on 5 June 2015) took out an application for the time to file and serve notice of appeal to be extended.  The time extension application arose as follows.  The defendants deposed in an affirmation that the time for taking out an appeal expired on the date of the summons, but they delayed in doing so due to various reasons (in particular change of solicitors, and correspondence with the former solicitors).

3.The time extension application was earlier heard on 26 June 2015 (with a hearing estimate of 15 minutes).  Due to:

(a) the obviously inadequate hearing time;

(b) the defendants’ indication that some grounds of appeal (which included (among other things) an allegation of apparent bias and procedural unfairness) would be removed from the draft notice of appeal,

it was adjourned part-heard to a date to be fixed (the hearing has now been re-scheduled to March 2016).

4.For reasons unknown, the stay application was not made at the same time as the time extension application.

5.Because of the pending time extension application which still awaits the parties’ further submissions, and the fact that the grounds of appeal have been partly changed, the merit of the time extension application cannot be properly determined at present.

6.It is thus also impossible to determine the part of the stay application concerning the prospect of success of the time extension application (and the related issue of the prospect of success of the intended appeal).

7.Despite the order mandating the sale of the land lot, the parties have not arrived at any agreement (nor have the plaintiffs sought court directions) regarding the manner of sale (and other ancillary order or directions).  There is therefore no imminent risk of a sale.  Nor have the plaintiffs contended that there is an urgent need to sell the land lot, or that they would be irreparably prejudiced by an interim stay of execution between now and the determination of the time extension application.

8.By virtue of the matters set out above, it is appropriate to grant such an interim stay, with a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the stay application up to today be in the cause of the stay application.

Mr Vincent Lam, instructed by Cham & Co, for the plaintiffs

Mr George Chu, instructed by Shum Wong & Co, for the defendants