Asparouh Ianev Dimitrov As Administrator of the Estate of Kaloian Ianev Dimitrov (Deceased) v. Dominic Tak Ming Lau also known as Lau Tak Ming

CACV 266/2017

[2018] HKCA 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 266 OF 2017

(ON APPEAL FROM HCA NO. 1079 OF 2015)

________________________

________________________

Before: Hon Cheung and Chu JJA in Court

Date of Plaintiff’s Written Submissions: 16 April 2018

Date of Defendant’s Written Submissions: 16 and 25 April 2018

Date of Decision: 15 June 2018

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court) :

1.Deputy High Court Judge To granted summary judgment to the plaintiff against the defendant for the sum of US$24,180,000. The defendant lodged his notice of appeal and applied for a stay of execution of the judgment pending appeal. The Judge refused to stay the judgment. The defendant now renews the application before us. We will deal with the application on paper.

2.The distinguishing feature of this case is that the plaintiff is a foreign plaintiff.  He is the administrator of the estate of the Kaloian Ianev Dimitrov (‘the deceased’) who had commenced the action against the defendant before his death.  The deceased conducted his business in the UK and died in the UK.  Letters of Administration was granted in the UK.  The plaintiff also lives in the UK.  The plaintiff and the deceased have no assets in Hong Kong.  The extent and whereabouts of the beneficiaries under the deceased’s estate is unknown.

3.The test for granting a stay pending appeal is whether, if the stay is not granted, the appeal would be rendered nugatory in the event the appeal is successful.  Where it is demonstrated that the appeal would be rendered nugatory if a stay was not granted, the Court may require no more than the existence of a reasonably arguable appeal.  How an appeal will be rendered nugatory depends on the circumstances of the case.  An example is the possible difficulties of seeking to recover from a foreign party, with no known assets in Hong Kong, who has successfully enforced the judgment before the appeal is heard.

4.The present case falls within this example.  The added complication is that the plaintiff is an administrator who is duty bound to distribute the recovered assets of the deceased.  We will refrain from dealing with the merits of the appeal and proceed on the basis that there is a reasonably arguable appeal.  While there is an undertaking offered from the plaintiff’s solicitors not to release to the plaintiff funds recovered from the enforcement of the judgment, in our view, balancing the interest of the parties, the appropriate order is to order a stay of the judgment until the determination of the appeal conditional upon the defendant paying into Court US$12 million within 21 days.

5.We further order the costs of the application be in the cause of the appeal.

Mr Robin D’Souza, instructed by Boase, Cohen & Collins, for the plaintiff

Mr George Chu, instructed by Tanner De Witt, for the defendant