Karex (Hong Kong) Ltd. v. Fortune Talent Development Ltd. and Others

HCA007422A/1998

HCA7422/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7422 OF 1998

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Coram : Hon Mr Justice Cheung in Chambers

Date of Hearing : 27 April 1999

Date of Decision : 27 April 1999

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D E C I S I O N

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1. The Plaintiff is seeking a stay of execution of my judgment pending the appeal to the Court of Appeal.

2. In this case, the Plaintiff is not seeking specific performance of the contract it had entered into with its own vendor but instead is claiming for the return of the deposit. In the former situation, it is important that the subject matter of the dispute, namely thelis pendens should be preserved pending the appeal. This is not the situation here. In the present case, the continuation of the lis pendens, in my view, and I agree with Mr Kwok's submission in this regard, amounts to a back door method of having a Mareva injunction against the assets of the Plaintiff before judgment when there is no basis for having such an order. I am not convinced that the refinancing proposed by the 1st Defendant is really a scheme to ensure that its assets become judgment proof.

3. I would decline to grant the order that is asked for. The summons is accordingly dismissed.

Representation:

Mr Andrew Mak, inst'd by M/s Gallant Y.T. Ho & Co., for the Plaintiff

Mr Kenneth Kwok S.C., inst'd by M/s Chan & Chiu, for the 1st Defendant