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

CACV 267/2025, [2026] HKCA 992

On Appeal From [2025] HKCFI 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2025

(ON APPEAL FROM HCMP NO. 1190 OF 2024)

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BETWEEN

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.By this Court’s Decision dated 16 January 2026 ([2026] HKCA 22)  (“Decision”)  the Defendants’ renewed application for stay of execution pending appeal against the order and judgment ([2025] HKCFI 1458)  both dated 25 April 2025 of Recorder Maurellet SC (“Recorder”)  was dismissed on the ground that the appeal had no reasonable prospects of success.

2.These matters arose out of a mortgage action. By the order of the Recorder, the Defendants were ordered to pay to the Plaintiff the sum of HK$8,408,679.44 together with further interest, and to deliver to the Plaintiff vacant possession of Flat A on 3^rd Floor and Car Parking Spaces Nos. 5 & 5A on the Car Port Floor, Hatton House, 15 Kotewall Road, Hong Kong (“Property’)  within 70 days.

3.There are now before the Court (i)  a Notice of Motion filed by the Defendants on 13 February 2026 seeking leave to appeal against the Decision to the Court of Final Appeal (“CFA”)  and (ii)  an ex parte Summons filed on 17 March 2026 by the Defendants seeking an urgent interim stay of execution of a writ of possession and fieri facias pending the final determination of their application of leave to appeal to the CFA.  We consider it appropriate to deal with both applications on paper. 

4.There are four grounds (“Grounds”)  advanced in respect of the leave application, namely :

“Ground 1: The Courts Erred in Failing to Recognize the Bank’s Duty to Apply Equitable Set-Off, Thereby Permitting an Unconscionable Foreclosure and Resulting in Unjust Enrichment.

Ground 2: The Courts Erred in Failing to Apply the Doctrine of Administrative Estoppel, Permitting the Bank to Benefit from Its Own Factual Error.

Ground 3: The Courts’ Failure to Address more than $6,000,000 Withholding in Their Judgments Constituted a Procedural Impropriety and a Denial of Natural Justice, Resulting in a Substantial and Grave Injustice.

Ground 4: The Learned Judge Erred in Law by Failing to find that the Appellants were Induced into Signing the Second Facility Letter on January 30, 2024, through the Plaintiff’s Deception and Misrepresentation.”

5.Three sets of submissions have been placed before the Court by the Defendants: (i)  the attachment to the Defendants’ supporting affirmation for the urgent stay dated 17 March 2026; and (ii)  skeleton submissions lodged on 23 March and 8 April 2026.

6.The leave application is made against an interlocutory decision of this Court.  Such application is rare and exceptional.  Leave will generally be declined unless it can clearly be demonstrated that: (i)  the proposed appeal genuinely raises a question of law of great general or public importance; (ii)  the result of the appeal would indeed turn on how that question is answered; and (iii)  such result is likely to make a significant contribution to the just disposal of the litigation (see Hong Kong Civil Procedure 2026, vol 2, [B4/3/11]).

7.It is plain that none of the Grounds constitutes a question of great general or public importance.  At the highest, they are facts specific to the case of the Defendants. 

8.Further, we can find no merit in any of the Grounds or the submissions of the Defendants.  Firstly, they fail to properly address the central issue in the proposed appeal, namely, whether the Defendants had accepted an offer by the Plaintiff to refinance their mortgage (see Decision, [3]).  Secondly, the Grounds and the Defendants’ submissions are largely a repetition of the submissions made before the Recorder and previously before this Court, and they had been rejected.

9.In the premises, there is no basis to grant leave to appeal to the CFA, and the Notice of Motion is dismissed.

10.Given the dismissal of the Notice of Motion, there is no reason to grant any stay over the enforcement action by the Plaintiff.  In any case, there is no exceptional circumstances which may justify a stay of execution (see Credit Lyonnais v SK Global Hong Kong Ltd [2003] 4 HKC 104). 

11.Lastly, it should be said that the Defendants say that the Property has a value of HK$70 million.  If so, there is no reason for them not to try to raise finance with the Property, albeit involving the agreement of the Plaintiff as mortgagee, to discharge what they owe to the Plaintiff.  There is not one iota of evidence to explain why the Defendants cannot satisfy the judgment in question.

12.For these reasons, both the Notice of Motion and the ex parte Summons are dismissed.  We see no reason why costs should not follow the event.  We make an order nisi that the costs of both applications be paid by the Defendants to the Plaintiff, to be taxed[1] on indemnity basis if not agreed.

Ms Christine Yu, instructed by Liu, Chan and Lam, for the Plaintiff

The 1^st and 2^nd Defendants, acting in person