Read the full judgment text of CACV 235/2017 on BabelCite. This Court of Appeal judgment was delivered on 13 July 2018 before Lam VP and Kwan JA.
Civil procedure – stay of execution pending appeal – Order 59 rule 13(1) Rules of the High Court – enforcement of plaintiff's undertaking as to damages after discharge of Mareva injunction – application for stay of renewed application after refusal by trial judge – assessment of damages by Lok J applying Lord Clarke NPJ's principles in MGA Entertainment Inc v Toys & Trends (Hong Kong) Ltd (2014) 17 HKCFAR 27 – whether appeal has requisite strength to justify stay – whether appeal would be rendered nugatory – whether US$1 million fortification money avoids prejudice to defendants – standard for stay based on merits alone requires appeal to be 'almost bound to succeed' or that something has 'grievously gone wrong' below – five grounds of appeal including no evidence of actual damage, no lost share-sale opportunities, failure to mitigate, and erroneous assessment period – appeal held arguable but not meeting the higher threshold – long-established practice requires appellant to show no reasonable prospect of recovering judgment sum – Kennedy Road Property worth about HK$150 million mortgaged for HK$68.5 million together with defendants' taxed costs of over HK$4 million owed by plaintiff and disclosed Hong Kong assets of about HK$200 million well above HK$3.5 million judgment sum – additional evidence from Shenzhen Municipal Public Security Bureau of criminal investigation and another alleged victim defrauded of RMB 65 million given little weight as no legal claim brought – plaintiff's own RMB 350 million claim held not relevant to risk of dissipation in respect of HK$3.5 million – starting point that successful party is not to be deprived of fruits of success – burden on applicant to show good reasons – fortification money does not displace principle – application determined on paper without oral hearing under Practice Direction 4.1 §36(12) – application dismissed – plaintiff to pay defendants' costs summarily assessed at HK$150,115 – orders nisi with 14 days to apply for variation.
Legal issues: Whether the appeal has sufficient strength to justify a stay of execution · Whether the appeal would be rendered nugatory without a stay · Whether a stay should be granted because the plaintiff has shown no prejudice to the defendants
Outcome: Application for stay of execution pending appeal dismissed.
Cited by 15 cases · Cites 5 cases