Read the full judgment text of CACV 239/2018 on BabelCite. This Court of Appeal judgment was delivered on 26 October 2018 before Lam VP, Poon JA.
Civil procedure – appeal – stay of execution – interim interim relief pending determination of substantive stay application – whether Court of Appeal should entertain application when substantive stay application remains extant below – test for interfering with lower court's decision on interim interim relief – abuse of process – case management – probate and administration – estate of CHAN CHUNG HAN (陳仲嫺) – Letters of Administration No 11355 of 2013 – s.33(3) of the Probate and Administration Ordinance, Cap 10 – appeal from HCMP 3186/2016 – W Chan J's judgment of 21 May 2018 ordering Defendant to provide inventory and account of estate, with Defendant removed as executor – Defendant's notice of appeal filed 19 June 2018 – June Summons for stay filed 22 June 2018 – Judge's refusal of interim interim stay on 27 June 2018, with Plaintiff offering undertaking to indemnify estate and pay $1.5 million into court – July Summons filed 13 July 2018 seeking interim stay – substantive relief in Order fully implemented by appointment of Ms T Wong of KPMG as new executrix on 13 August 2018 – first issue: whether proper approach is that in NPYJ v SMRC and China Shanshui Cement Group Ltd v Zhang Caikui (interim interim relief – balance of fairness – not to interfere unless plainly wrong) – held: yes, while substantive stay application remains extant before Judge, it is an abuse of process to come to Court of Appeal for same relief – Order 59 Rule 14(4) precludes exercise of concurrent jurisdiction in first instance – second issue: whether appeal would be rendered nugatory without stay – held: no, all substantive relief already executed and there is nothing to be stayed – late listing of substantive hearing on 11 June 2019 cannot itself be ground for stay – Judge's refusal of interim interim relief plainly right, not plainly wrong – July Summons dismissed with costs – suggested case management procedures for stay applications in Court of First Instance including paper disposal, limited oral hearings of 30 minutes to 1 hour, and rejection of counsel's diary dictating hearing dates – in line with measures proposed in ZJ v XWN – Order 1A Rule 4 and Order 1B Rule 1(2)(l) authorise such case management – Plaintiff's costs summarily assessed at $300,000 (nisi order) out of $452,790 claimed.
Legal issues: Proper approach to application for interim stay pending determination of substantive stay application below · Whether the appeal would be rendered nugatory without a stay
Outcome: July Summons dismissed with costs
Cited by 41 cases · Cites 5 cases