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DCCJ 4410/2017
[2020] HKDC 822
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 4410 OF 2017
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| BETWEEN |
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MAN SUN TRADING LIMITED |
Plaintiff |
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and
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LAU WING KEUNG STEPHEN |
Defendant |
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Before: Her Honour Judge Phoebe Man (paper disposal)
Date of Defendant’s Submissions: 13 March 2020 (not complied with)
Date of Plaintiff’s Submissions: 20 March 2020
Date of Defendant’s Submissions (out of time): 10 September 2020 (not complied with)
Date of Decision: 15 October 2020
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DECISION
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APPLICATION
1.I refer to my decisions dated 17 December 2018, 30 September 2019, 25 November 2019 (the “Decision”) and 17 March 2020 for the history of the present action.
2.In the Decision, I ordered that:-
(1) The defendant’s application by summons dated 16 September 2019 for stay of execution is dismissed.
(2) The defendant’s application to vary costs order nisi by letter dated 10 October 2019 is dismissed.
(3) The plaintiff’s application by summons dated 30 May 2019 is allowed. Unless the defendant do pay to the plaintiff the following sums pursuant to the Order of Master Simon Ho dated 4 October 2018 (as set out in subparagraphs (a)(i) (ii) and (iii) below) on or before 15 January 2020, the whole of the defendant’s Re-Amended Defence and Counterclaim be struck out and the plaintiff be at liberty to enter judgment in the terms set out in the Statement of Claim filed on 6th October 2017 against the defendant:-
(a) In the premises (Commercial Units A and B on 6th Floor, Bai Yun Building, No 10 Wai Ching Street, Kowloon, Hong Kong), the defendant do pay the following interim payments to the plaintiff:-
(i) a sum of HK$150,000 for the period from 1 August 2017 to 31 October 2018;
(ii) a monthly sum of HK$10,000 on the first day of each calendar month commencing from 1 November 2018 until further order;
(iii) costs summarily assessed at HK$50,000.
(the “Unless Order”)
3.This is the defendant’s application by summons dated 6 January 2020 (the “Application”) for:-
(1) stay of execution of my orders in the Decision and
(2) extension of time for payment of the sums ordered by Master Simon Ho on 4 October 2018 to be paid.
PROCEDURAL HISTORY
4.I ordered on 25 February 2020 that the Application be dealt with on paper. Directions were given for the defendant to file his written submissions on or before 13 March 2020 and the plaintiff to file their written submissions by 20 March 2020. Leave was also granted for the defendant to file reply submissions, if any, by 25 March 2020.
5.The defendant did not file his written submissions by the deadline or at all. The plaintiff had filed their written submissions in accordance with the timetable.
6.Neither party did anything in the meantime until the plaintiff’s solicitors wrote to the Court for directions on 21 August 2020. I thus gave directions on 27 August 2020 that unless the defendant do file his written submissions within 14 days thereof, I would proceed to decide the Application regardless of the fact that he had no written submissions. The directions were informed by the plaintiff’s solicitors by mail to the defendant’s last known address.
7.The defendant failed to file any submissions before the deadline on 10 September 2020, or at all. I thus proceeded to decide the Application on paper.
LEGAL PRINCIPLES
8.The defendant is essentially applying for a stay of execution of the Unless Order. The legal principles for an application for stay of execution are trite. The starting point is Order 59 rule 13(1)(a) of the Rules of the High Court:-
“Except so far as the court below or the Court of Appeal or a single judge may otherwise direct an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below.”
9.Order 45 rule 11 of the Rules of the District Court provides:-
“Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.”
10.The principles governing the grant of a stay of execution of a judgment or order have been set out in Star Play Development Ltd v Bess Fashion Management Co Ltd[1]:
(1) Unless the defendant can justify a stay of execution, one will not be ordered. Justification can be demonstrated only if good reasons exist.
(2) Good reasons refer to factors such as whether the absence of a stay would render an appeal nugatory and the merits of the appeal.
(3) In determining whether an appeal would be rendered nugatory, the Court must first have regard to the nature of the order that was the subject matter of the appeal. If the order appealed against was a money judgment, it is insufficient for the appellant to say that the levying of execution would result in financial ruin or serious financial consequences for the appellant. The Court would require good evidence to support the contention. A bare assertion is not enough.
(4) It is impractical and even undesirable for the court to go deeply into the merits and the strengths of an appeal. It must however form a preliminary view of these aspects.
(5) The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It is the minimum requirement before a court would consider granting a stay. On the other hand the existence of a strong appeal or a strong likelihood that the appeal would succeed will usually by itself enable a stay to be granted.
(6) It is always relevant to consider the prejudice that would be caused to the successful party in the event a stay is granted and if necessary, to impose conditions so as to minimise the prejudice caused to him.
DEFENDANT’S GROUNDS OF APPLICATION
11.The defendant relied on the following grounds as set out in his affidavit dated 6 January 2020:-
(1) His right under his Counterclaim and a right to a proper trial were grossly violated. --- As already pointed out time and again by this Court to the defendant, an interim payment order does not replace the trial and the defendant will still have the opportunity to cross-examine and to challenge the authority of Mr Yam at trial. This ground is misconceived and is rejected.
(2) He complained of the deceptive behaviour of Mr Yam of the plaintiff. The plaintiff had wasted time in taking out the interim payment application. --- The plaintiff was entitled to take out any application they deemed fit. In fact they were successful in the application. Whether Mr Yam of the plaintiff was involved in any deceptive behaviour could be explored at trial. I do not see how this ground can be relied upon in support of an application for stay of execution.
(3) He is still awaiting the result of his appeal to the Court of Appeal. Applying the principles of Star Play Development Ltd, an appeal does not operate as a stay of execution. I do not see how the absence of a stay would render the appeal nugatory. As said before, the defendant had been staying in the Property without paying any rent since 15 August 2017 (for more than 3 years now). Even if he were successful in his appeal, the interim payment would simply contribute to any ultimate rental arrears that the defendant would owe.
12.As I do not see any valid ground in support of the defendant’s application, the application for stay of execution is dismissed. The application for an extension of time on payment is also dismissed.
13.I grant a costs order nisi that the defendant shall pay the costs of and occasioned by the Application, to be taxed if not agreed. The costs order nisi will become absolute in 14 days without objection from either party.
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( Phoebe Man )
District Judge |
Mr Tang Man Ching, of Messrs Ma Tang & Co., for the plaintiff
The defendant is not represented
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