The Bank of East Asia, Ltd v. Tarjoto Heru Hidajat and Another

HCMP 1190/2024

[2025] HKCFI 2645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1190 OF 2024

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D E C I S I O N

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Costs

1.Insofar as paragraph 46 of my judgment is concerned, I acceded to summary assessment of costs. The bank did file a costs assessment schedule in the amount of HK$316,371, but this was for 100 percent. As I only ordered the bank to recover 80 percent of the costs of the proceedings, I have now considered the amounts and bearing in mind some element of duplication, and notwithstanding that the basis of taxation is indemnity costs basis, I consider the appropriate costs to be HK$225,000; to be payable within 28 days. That is the costs assessment of the whole proceedings.

Stay pending appeal

2.Insofar as the stay pending execution is concerned, I will give brief reasons. This is an application by the defendants dated 27 May 2025, for stay of execution pending appeal of my judgment handed down on 25 April 2025. In their cover letter dated 29 May 2025, the defendants also raised the point that I am biased. I should explain the fact that a judge disagreed with the contention of a party per se would not amount to any bias preventing that judge from dealing with the same matter.

3.Indeed, applications for leave to appeal or for stay are often fixed before the judge who made the order under appeal. I have also reminded the defendants that they can renew the application for stay pending appeal before the Court of Appeal should I dismiss this application for a stay before me.

4.The applicable principles on such an application have been usefully explained by Mr Justice Ma (as Chief Justice Ma then was) in Star Play Development Ltd v Bess Fashion Management Co. Ltd [2007] 5 HKC 84. At the risk of oversimplification:

(1)  The burden is on the party seeking a stay to make out a positive case to justify the indulgence, and it is not for the successful party to justify why a stay should not be granted;

(2)  If there are no demonstrable, arguable grounds of appeal, no stay will be granted, however exceptional the circumstances may otherwise be justifying a stay of execution.

(3)  Even if the court is satisfied that there are arguable grounds of appeal, the appellant must provide additional reasons as to why a stay should be justified.

(4)  If the suggested additional reason is the possibility of the appeal being rendered nugatory, it is incumbent upon the appellant to provide evidence to substantiate it.

5.I bear in mind that, as pointed out in Star Play at paragraph 9(1), where the relevant order is one for possession of premises, it can readily be appreciated that without a stay of execution, more often than not, it is likely that the appeal would be rendered nugatory.

6.The defendants pointed to the same argument on the appeal being rendered nugatory, and in this respect I agree with them.

7.I have considered the grounds advanced by the defendants in the attachment to their application, as well as the notice of appeal dated 6 May 2025. I regret that I am unable to identify any arguable grounds of appeal:

(1)  The bulk of the defendants’ argument centres on the alleged loan to refinance the debt on which the Order 88 proceedings are based. Insofar as the defendants’ complaint that the bank’s position was that whatever offer was “conditional”, the defendants have apparently overlooked the fact that I had likewise expressed my reservations.

(2)  More importantly, the defendants have not advanced any cogent argument on why they should not be bound by the 2^nd facility letter, which amounts to a subsequent legal agreement between the parties setting out and delineating their legal rights and obligations.

(3)  The defendants complained in the attachment to their stay application that I apparently did not address certain points, such as the consumer loans. It would appear that they have overlooked the fact that I have in fact ruled in their favour by holding that, in these Order 88 proceedings, the bank is not entitled to recover the credit card debt allegedly owed by one of the defendants. In any event, this is not the point included in the notice of appeal.

(4)  Insofar as the insurance argument is concerned, I have held that the matter has been dealt with by the bank, which had filed two affirmations in reply, in particular the bank’s 2^nd affirmation in reply (being the 3^rd affirmation of Daisy Wu). In any event, that point was not included in the notice of appeal.

8.In the circumstances, I regret that I have to dismiss the application for a stay.

Ms Christine Yu, instructed by Liu, Chan & Lam, for the plaintiff

The 1^st and 2^nd defendants appeared in person