Case Document

100%Judiciary

HCA 481/2012 &
HCA 1785/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 481 OF 2012

_______________

BETWEEN
	LUCKY POWER LIMITED	Plaintiff
and
	LAM, PHILIP YUNG TAK and/or other occupiers	1st Defendant
	EDUCATIONAL MAHJONG CARD GAME LIMITED	2nd Defendant

_______________

AND

ACTION NO 1785 OF 2012

_______________

BETWEEN
	LUCKY POWER LIMITED	Plaintiff
and
	LAM, PHILIP YUNG TAK	Defendant

_______________

(Consolidated by Order of Master Leong dated 13 May 2013)

Before: Hon Chow J in Chambers (Open to Public)

Date of Hearing: 30 November 2016

Date of Decision: 2 December 2016

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D E C I S I O N

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INTRODUCTION

1.The issue for determination is whether I should grant a stay of execution of the court’s previous judgment and order pending Mr Lam and Educational’s proposed appeal to the Court of Appeal.

2.For the purpose of this decision, I shall continue to use the expressions and abbreviations as defined in the written judgment handed down on 27 July 2015 (“the Main Judgment”).

BACKGROUND FACTS

3.The Main Judgment was given after a contested trial of these two consolidated actions heard in June 2015. In the Main Judgment, I found in favour of Lucky Power that the relationship between its predecessor in title (Mr Casadei) and Mr Lam was that of mortgagor and mortgagee, and that Lucky Power was entitled to step into the shoes of Mr Casadei and exercise the equitable right of redemption to free the Lots from the equitable mortgage created by the Memorandum.

4.On the basis of those findings, I made, inter alia, the following orders:-

(1) In relation to HCA 481/2012: subject to payment by Lucky Power of any amount found to be due to Mr Lam under the Memorandum in HCA 1785/2012, Mr Lam and Education shall deliver up vacant possession of the Green Area to Lucky Power.

(2) In relation to HCA 1785/2012:

(a) an account be taken of the outstanding indebtedness due to Mr Lam under the Memorandum, and payment of the amount found due by Lucky Power to Mr Lam;

(b) upon payment of the amount found due to Mr Lam under the Memorandum as aforesaid, Mr Lam shall deliver up all title deeds relating to the Lots to Lucky Power as well as vacant possession of the Lots (including the Green Area) to Lucky Power; and

(c) Lucky Power be at liberty to apply for such further or other relief as it may be entitled to under the judgment.

5.On 12 October 2016, I handed down a further decision (“the Decision”) upon Lucky Power’s application for the ascertainment of the amount due to Mr Lam under the Memorandum and delivery up of vacant possession of the Lots and title deeds relating thereto, and made the following order:-

(1) upon payment by Lucky Power of the sum of HK$320,000 into court within 14 days from the date of the order –

(a) Mr Lam shall deliver up all title deeds relating to the Lots, as well as vacant possession of the Lots (including the Green Area), to Lucky Power; and

(b) Mr Lam and Educational shall deliver up vacant possession of the Green Area to Lucky Power; and

(2) upon fulfilment of paragraphs (1)(a) and (b) above, the sum of HK$320,000 paid into court by Lucky Power may be paid out to Mr Lam upon his application.

6.On 17 October 2016, Mr Lam and Educational made an application to the Court of Appeal seeking an extension of time to appeal against the Main Judgment (HCMP 2798/2016).

7.On 26 October 2016, Lucky Power paid the sum of HK$320,000 into court pursuant to the Decision.

8.On 19 November 2016, Mr Lam and Educational issued the present summons seeking a stay of execution of the Main Judgment and Decision pending their proposed appeal.

9.On 28 November 2016, Mr Lam and Educational made a further application to the Court of Appeal seeking an extension of time to appeal against the Decision (HCMP 3331/2016).

DISCUSSION

10.Mr Lam and Educational’s application for an extension of time to appeal against the Main Judgment was made almost 15 months out of time. Ms Ng has informed the court that in their application or affirmation in support of the application, Mr Lam and Educational did not give any explanation for the delay. In relation to the proposed appeal, it would appear, from the application which I have looked at, that Mr Lam and Educational are relying on the same grounds and arguments which they advanced, unsuccessfully, at the trial to resist Lucky Power’s claims against them. I am not satisfied that Mr Lam and Educational have demonstrated that they have arguable grounds of appeal against the Main Judgment.

11.Coupled with long delay in making the application for an extension of time to appeal and the absence of any reasonable explanation for the delay, I am also not satisfied that Mr Lam and Educational have a reasonable prospect of obtaining the extension of time sought either.

12.The Decision is consequential on the Main Judgment. If Mr Lam and Educational are unable to overturn the Main Judgment, it is difficult to see how they can overturn the Decision.

13.For the above reasons, I am not prepared to grant any stay of execution of the Main Judgment and Decision pending appeal. I therefore dismiss Mr Lam and Educational’s summons dated 21 November 2016 with costs to Lucky Power, to be taxed if not agreed.