Read the full judgment text of CACV 286/2000 on BabelCite. This Court of Appeal judgment was delivered on 5 June 2001 before Keith JA, Stock JA, Le Pichon JA.
Civil procedure – stay of execution – pending appeal to Court of Final Appeal – section 26(1) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) – whether 'very exceptional circumstances' exist – contract for sale of shop in Mongkok – $53m purchase by vendor, $55m onward sale to purchaser – both completions fixed 2 September 1997 – onward sale fell through – deposits of $8.25m paid – Court of First Instance (Deputy Judge Gill) held purchaser to blame and permitted vendor to retain $5.5m (10% of purchase price) – Court of Appeal reversed, entering judgment for purchaser for $16.25m plus interest and costs (comprising $8m damages plus $8.25m deposits returnable) – vendor obtained leave to appeal to Court of Final Appeal as of right by consent – application for stay of execution pending CFA appeal – principles applicable to grant of stay pending appeal to court of final adjudication – English practice on appeals to House of Lords followed – a stay will not be granted save in very exceptional circumstances – examples include where execution would destroy subject matter of the action, deprive appellant of means of prosecuting appeal, or render appeal nugatory – mere unnecessary expense to parties insufficient – mere impecuniosity insufficient – the epithets 'very rare' and 'very exceptional' mean what they say, indicating a very high hurdle – approach is not a mere balancing exercise – vendor's only asset is the shop, valued at about $30m (purchased for $53m in September 1997) – vendor's liabilities: about $14.6m secured mortgage debt to Wing Hang Bank and about $48.8m unsecured loan from shareholder K. Y. Ltd. – purchaser has obtained charging order absolute over the shop ranking second to the Bank – vendor and K. Y. Ltd. offered undertakings not to incur further liabilities or deal with the shop and not to recall the loan – held: no special circumstances, much less very exceptional circumstances, shown – shareholders (K. Y. Ltd.) could put up funds to satisfy judgment debt and prevent forced sale; no evidence they were unwilling or unable to do so – purchaser runs significant risk that shop's value will decline further if execution stayed – application dismissed – vendor to pay purchaser's costs of the application in any event, to be taxed if not agreed.
Legal issues: Principles governing stay of execution pending appeal to the Court of Final Appeal · Whether the vendor demonstrated very exceptional circumstances warranting a stay
Outcome: Application for stay of execution of the Court of Appeal judgment pending appeal to the Court of Final Appeal dismissed.
Cited by 3 cases