Norman Guy Donald and Others v. Li Pak Huen in His Capacity As Executor of the Estate of Li Pak Wing and Others

HCMP 1836/2017

[2024] HKCFI 2729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1836 OF 2017

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DECISION

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1.This is my decision^[1] on D11’s application for an interim stay (“Present Application”) of paragraphs 2, 4 and 5(d) of the order made by B Chu J on 22 May 2024 (“Order”) pending the determination of his summons dated 3 July 2024 (“D11 Summons”), by which he seeks a stay of execution of Order §§2, 4 and 5(d) pending appeal.

2.Separately, D3 has applied for a stay of Order §1 pending appeal by his summons dated 22 May 2024 (“D3 Summons”).  Directions were given by B Chu J for paper disposal of D3 Summons.  As I understand the position, no interim stay was sought by D3 pending the determination of the D3 Summons.

3.Having considered the letter dated 25 July 2024 from the Ps’ solicitors, directions were (by consent) given on 26 July 2024 to determine the D11 Summons by paper disposal (“26/7/24 Directions”).  The outstanding issue then was it was not entirely clear whether D11 would pursue an interim stay pending the determination of the D11 Summons.  As part of the 26/7/24 Directions, I had directed D11 to inform the court by 4:00 pm that day whether the Present Application would be pursued and gave directions for its determination on the papers (if pursued).  Whilst slightly out of time, D11 confirmed at around 6:45 pm that the Present Application would be pursued.

4.The parties to the D11 Summons had agreed that the D11 Summons should be dealt with by the same judge who determines the D3 Summons.  After discussions with B Chu J, it has been decided that I should determine both summonses.

5.Essentially, the Order directed, inter alia, that (1) D3 and D11 do leave and vacate the Family Property and deliver up vacant possession of the identified (different) apartments of the Family Property by 31 July 2024 (Order §§1 and 2) and (2) the Family Property be sold on the ordered terms.

6.The Present Application is opposed by Ps and D9.

7.As I understand the position, it is envisaged under the Order that the sale of the Family Property is to be conducted en bloc as opposed to be on a piecemeal basis.

8.I have considered that submissions made by Ps and D9, including (1) D11’s appeal lack merits, (2) D11 has a history of delaying these proceedings, (3) prejudice would be caused to the Estate and (4) the D11 Summons does not seek an interim stay pending its determination.  It does not appear to be disputed by Ps and D9 that the nature of the Order is such that the appeal would be rendered nugatory absent a stay.

9.As the sale of the Family Property is to be conducted en bloc, the parties have sensibly agreed that the D3 Summons and the D11 Summons should be dealt with by the same judge.  For example, were a stay granted in favour of D3, it seems to me that that is a relevant consideration in respect of the D11 Summons.

10.Not being the trial judge, the parties would appreciate that some time is required for the court to familiarize with the issues ventilated at trial.  What I propose to adopt the approach set out at Dragonrider Opportunity Fund LP v Lam Fung & Anor, HCA 752/2012, 22 May 2013 §§1 and 7, namely to grant a short interim stay pending the determination of the D11 Summons.

11.To provide some certainty to the parties, I will hand down my decisions on both the D3 Summons and the D11 Summons on or before 4 November 2024.

12.I also reserve issue of costs in respect of the Present Application.