Li Kin Keung v. Yat Fat Ltd and Another
Read the full judgment text of HCA 341/2013 on BabelCite. This High Court CFI judgment was delivered on 1 November 2019 before Hon Lok J.
Civil procedure – stay of execution pending appeal – enforcement of judgment – ancillary relief proceedings – share ownership – appeal – costs – Whether stay of execution pending appeal granted – No; appeal not arguable – Whether stay of proceedings pending ancillary relief granted – No; parties consciously decided to resolve disputes – Enforcement of judgments allowed – Costs follow the event – Li's solicitors authorized to execute share transfer documents in default
Legal issues: Stay of execution pending appeal · Stay of proceedings pending ancillary relief · Enforcement of judgments
Outcome: 1st Stay Applications dismissed; Enforcement Applications allowed; 2nd Stay Applications dismissed.
Cited by 3 cases · Cites 3 cases
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HCA 341/2013 & HCA 873/2013 (Heard together) [2019] HKCFI 2977 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 341 OF 2013 _____________
(By Original Action) _____________
(By Counterclaim) _____________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 873 OF 2013 _____________
_____________
_________________________ REASONS FOR DECISONS _________________________ 1.There are a few applications before me:
2.In the hearing on 1 November 2019, I dismissed all the Stay Applications but allowed the Enforcement Applications. I now give my reasons. 3.In line with the principles laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai[1], I intend to give only brief reasons for my decisions. 4.The background of these cases had been set out in my written judgment handed down on 15 May 2019 (“the Written Judgment”), and I do not want to repeat the same here. 5.For easy reference, I will just refer the parties in Li’s camp as “Li” himself and the parties in Pu’ camp as “Pu” herself. I will also adopt the same abbreviations that I used in the Written Judgment. 6.After the handing down of the Written Judgment, Pu commenced divorce and ancillary relief proceedings under FCMC 9083/2019 (“the Ancillary Relief Proceedings”) against Li on 30 July 2019. The 1st Stay Applications 7.The applicable principles for granting stay of execution pending appeal are well-established and have been summarised by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd[2]. 8.Applying these principles, I am not satisfied that Pu has managed to establish an arguable appeal. This case turns very much on the facts. It can be seen from Pu’s grounds of appeal that her whole appeal is about challenging the factual findings of this court. It is trite that the appellate court will be slow in distributing the factual findings made by the trial judge. 9.Pu intends to adduce new evidence in the appeal by making a Ladd v Marshall application before the Court of Appeal. Though the matter is now still under consideration, I accept the submission of Mr Lam, counsel for Li, that such application cannot assist Pu’s case for the following brief reasons:
10.Further, the appeal would not be rendered nugatory if no stay is granted. Pu’s allegations about Li’s financial ability to pay damages and “gambling problems” are nothing more than bare assertions. As laid down in Star Play, where it is alleged that the appellant will suffer serious financial consequences if a stay is not granted, the court will require good evidence to support such a contention.[3] Pu is far from discharging such burden. Further, Li has agreed to provide an undertaking not to deal with the General-Lite shares and 30% Yat Fat shares pending the determination of the appeal. This removes any basis for suggesting that the appeal would be rendered nugatory. 11.For the above reasons, subject to Li’s undertaking as mentioned in the preceding paragraph, I dismissed the 1st Stay Applications. The 2nd Stay Applications 12.Likewise I find no merit in the 2nd Stay Applications. 13.At the commencement of the trial, I had already expressed my query as to whether it was wise for the parties to pursue the present actions. The relationship of Pu and Li had broken down since 2007. As there might be divorce proceedings in the future, the distribution of assets between Pu and Li would have to be determined in the Family Court in any event. Hence, no matter what would be the result of the present case, the financial positions of the parties would not be finalized. Despite such advice, the parties still decided to resolve their disputes through the present 2 actions and so the trial could not be avoided.[4] 14.The parties had therefore made a conscious decision requesting the court to determine the issue of ownership of the disputed shares as a matter of property law. The court proceeded with the trial and made a determination on such matters. If it was her genuine intention that the question of ownership of the shares should have been considered together the possible ancillary relief proceedings, I wonder why Pu had not made such request earlier. In particular, I had expressed my query about the purpose of the trial at the outset. In such case, it would simply be too late and indeed unjust for either party now to say that we can ignore the Judgments given in these 2 actions. 15.Pu mentioned the possibility of dissipation of assets. However, in case that there is any such evidence, Pu can always make an appropriate application in the Ancillary Relief Proceedings to freeze Li’s assets. Furthermore, there is insufficient material before the court to support any allegation of such sort. 16.In a way, the Court of Appeal also agreed that these 2 actions should proceed as normal without waiting for the Ancillary Relief Proceedings. As mentioned above, Pu made a Ladd v Marshall application to adduce new evidence in the appeal. By a letter from Pu’s solicitors dated 13 September 2019, Pu asked the Court of Appeal to withhold the decision for such application pending the Ancillary Relief Proceedings. The Court of Appeal rejected such request and decided that it would deal with the application in the usual course. 17.Mr Todd, QC, counsel for Pu in the present applications but not at the trial, referred me to a number of authorities including Tee v Tee[5]. However, I do not accept that they can assist Pu’s case. 18.At most, the rationale of these authorities is that once the ancillary relief jurisdiction is engaged, there is no need for a determination in separate proceedings on the issue of ownership of the matrimonial properties, and the whole matter should be considered as a whole in the context of the ancillary relief proceedings. 19.This has no application to the present case. The parties, who were fully aware of the possibility of ancillary relief proceedings, nevertheless requested the court to determine the ownership of the disputed shares. It will make a mockery of the trial if either party now say, despite the express ruling of the court on the ownership of the shares, the parties can ignore the Judgments because of the pending Ancillary Relief Proceedings. 20.Further, by making the 2nd Stay Proceedings, Pu is also asking the court to stay the appeal proceedings pending the Ancillary Relief Proceedings. It is clear that this court has no jurisdiction to order a stay of the appeal which is now before the Court of Appeal. The application has to be made directly to the appellate court. The Enforcement Applications 21.The Enforcement Applications seek orders under O 45 rr 6 and 8 to fix a time for compliance of the Judgments, and that in default Li’s solicitors be authorized to execute the share transfer documents. 22.The supporting evidence shows that: (i) Li had tendered the remaining purchase price for the Yat Fat Shares; and (ii) Pu had failed or refused to comply with the Judgments despite repeated requests. As I refused both Stay Applications taken out by Pu, it follows that Li’s should be allowed to enforce the Judgments. I therefore allowed the Enforcement Applications. 23.Costs should follow the event, and so I made the costs orders accordingly.
Mr Keith Lam, instructed by Tony Kan & Co, for the Plaintiff by Original Action and the Defendants by Counterclaim in HCA 341/2013 and the Plaintiff in HCA 873/2013 Mr Richard Todd, QC, instructed by Zhong Lun Law Firm, for the 2nd Defendant by Original Action and the Plaintiff by Counterclaim in HCA 341/2013 and the 1st Defendant in HCA 873/2013 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCA 341/2013