Abn Amro Bank N V v. Manharlal Trikamdas Mody and Another

HCMP004724/2001

HCMP 4724/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4724 OF 2001

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Coram: Deputy High Court Judge A Cheung in Chambers

Date of Hearing: 18 September 2002

Date of Judgment: 18 September 2002

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J U D G M E N T

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1.Today I have two appeals before me taken out by the 1st Defendant. The first appeal is an appeal against Master S Kwang's order made on 3 September 2002. At the hearing, the 1st Defendant did not proceed with this appeal, so I make an order dismissing this appeal. Mr Chow, representing the Plaintiff, did not ask for costs, so I make no order as to costs.

2.In relation to the second appeal, this is an appeal against an order made by Master Mary Yuen on 23 August 2002 granting a stay of execution of the judgment that the Plaintiff has obtained against the Defendants for possession of the subject property on terms. The 1st Defendant is not happy with the terms imposed and he appeals against the order.

3.In my judgment, there are no merits in the appeal. The terms imposed by the learned Master were essentially based on the terms put forward by the solicitor acting for the Defendants at the hearing below. If anything, the terms imposed by the Master were slightly more favourable than that offered by the Defendants' then solicitor.

4.Since the lodging of the appeal, it has transpired that a sealed copy judgment against the 1st Defendant is registered against the subject property by a third party; because of that, the intending new mortgagee of the Defendants has very naturally expressed reluctance to continue processing the refinancing application.

5.This being the case, the original basis of the grant of the Master's order, i.e. that the Defendants need time to complete the refinancing exercise so as to pay off the Plaintiff, is very much in doubt. Moreover, the Defendants have already breached two of the terms imposed by the Master, namely, payment of $300,000.00 by the end of last month and the production of evidence from the intending mortgagee within 7 days of the Master's order of the intending mortgagee's willingness or offer to refinance the mortgage loan due to the Plaintiff, the subject of the present litigation. Given what I have just outlined relating to the latest judgment, there is, as I say, a real doubt as to whether the intending mortgagee would go ahead with the refinancing without the Defendants' first settling with the plaintiff in the other action who has obtained a judgment against the 1st Defendant and who has registered the sealed copy judgment against the property in question.

6.For all these reasons, I am not minded to accede to the 1st Defendant's request to vary the terms imposed by the Master by extending the time for the payment of the balance of the $300,000.00 which ought to have been paid by the end of last month to the end of this month. In the absence of any concrete evidence as to the ability of the 1st Defendant to settle with the plaintiff in the other action and to procure the vacating of the registration of the sealed copy judgment from the Land Registry, there is a big question mark as to whether the intended refinancing exercise can be completed which is the whole basis of the stay of execution granted by the Master.

7.In those circumstances, I think it only right that I should dismiss the appeal without tampering with the terms imposed by the Master, and I so order. Costs should follow the event; I make an order that the 1st Defendant pay to the Plaintiff the costs of this appeal forthwith to be taxed, if not agreed.

8.For the avoidance of doubt, the interim stay of execution pending appeal granted by me on 4 September 2002 now lapses automatically following my dismissal of the appeal, and the costs of the application for the interim stay which I reserved should form part of the costs of this appeal and, therefore, should also be paid by the 1st Defendant to the Plaintiff forthwith to be taxed, if not agreed.

9.I should add that in deciding to dismiss the appeal, I have also taken into account the latest affirmation filed by the daughter of the Defendants in which she expresses on behalf of her parents the intention to challenge the judgment that the Plaintiff has obtained against the two Defendants.

10.No application has yet been taken out by the Defendants to challenge the judgment and I am not seized with any such application. But I can say at once that I am not impressed by the intended application. Without pre-judging any possible application, I would simply say that first, there has been a long delay since the judgment was first entered last year. Secondly, the Defendants were throughout aware of the action by the Plaintiff against them and it was their conscious decision not to contest the action and thus the judgment. They were, at one stage, represented by lawyers of very good reputation, yet they consciously decided not to contest the action but instead made applications for a stay of execution of the judgment.

11.For all these reasons, I have not been impressed by the possible application to challenge the judgment in considering the appeal before me.

Representation:

Mr A Chow, of Messrs Joseph S C Chan & Co., for the Plaintiff

Mr Manharlal Trikamdas Mody, the 1st Defendant, represented by Ms Sonal M. Mody, in person