Read the full judgment text of HCA 1055/2014 on BabelCite. This Court of First Instance judgment was delivered on 20 September 2019 before Hon B Chu J.
Civil procedure – stay of execution pending appeal – mandatory order to deliver vacant possession and demolish allegedly illegal structure – principles governing stay applications – whether appeal would be rendered nugatory without a stay – enforcement of building orders by civil court – discretion – The plaintiff, TANG MOON LAM, was appointed to represent the estate of TANG SHAU KI, deceased, and sued the defendant, TANG YING YEUNG, in respect of Lot 1 on which the defendant had caused the New House to be erected, an alleged illegal structure. By the Judgment handed down on 15 May 2018, the court ordered the defendant to deliver up vacant possession of Lot 1 to the plaintiff within three months and to demolish the New House. The defendant lodged a notice of appeal on 1 June 2018 with the appeal fixed for hearing on 25 September 2019. The defendant failed to comply with the deadline and did not apply for a stay of execution before it expired. The plaintiff then issued an Enforcement Summons on 12 July 2019, after which the defendant issued the present Stay Summons. The court considered the principles governing stay applications, as set out in Star Play Development Ltd v Bess Fashion Management Co Ltd, HCA 4726/2001, and Ketchum International plc v Group Public Relations Holdings Limited [1997] 1 WLR 4, holding that where the order is for possession of premises, the nature of the order will often be almost determinative that, without a stay, an appeal would be rendered nugatory in the event of success. The plaintiff conceded that vacant possession should not be delivered pending appeal but argued that the New House should nonetheless be demolished as an illegal structure. The court rejected this, holding that it was not the court's function to enforce the Building Order on behalf of the District Lands Office in the present proceedings, and that compelling demolition of the New House at this stage would be more draconian and deleterious on the defendant than the mere delivery of vacant possession. A stay of paragraph 2 of the Judgment was granted until determination of the appeal, with the Enforcement Summons adjourned sine die with liberty to restore. Costs of the stay application were ordered to be costs in the cause of the appeal, and costs of the Enforcement Summons were reserved.
Legal issues: Whether to grant a stay of execution of paragraph 2 of the Judgment (demolition of the New House) pending appeal
Outcome: Stay of execution of paragraph 2 of the Judgment granted to the defendant until determination of the appeal; Enforcement Summons adjourned sine die with liberty to restore after determination of the appeal.
Cited by 3 cases · Cites 1 case