Bruce Hutchison v. Ho Pui Tsun Peter

HCA000749/2002

HCA749/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. HCA 749 OF 2002

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Coram: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 24 November 2003

Date of Ruling: 24 November 2003

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R U L IN G

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1.This is an application for a stay of execution pending an appeal against my judgment in this matter dated 25 April this year. Leave to appeal had become necessary because the defendant had been out of time in bringing his appeal, which of course would have been an appeal as of right. Nevertheless, the parties agreed that he should have leave, which was subsequently endorsed by the single Justice of Appeal.

2.There are three elements to the judgment: firstly, an outright judgment for $500,000 on a dishonoured cheque; secondly, an order giving the defendant conditional leave to defend the balance of the claim in the amount of $1.41 million on terms that he bring that amount into court within 56 days or else the plaintiff would be at liberty to enter judgment - that condition not having been satisfied, judgment was subsequently entered by the court in favour of the plaintiff.

3.The defendant now applies for a stay on all three elements of the judgment. The argument has been very well put on both sides by Mr Lam who applies for the stay and by Mr Fung who has resisted the application.

4.The law on applications of this sort have been relatively recently restated by Ma J (as he then was) in Wendon Engineering Service Company Limited v Lee Shing Yiu Construction Company Limited, HCCT 90/1999. Firstly, the defendant will need to justify a stay. There are two basic ingredients for a successful application: the first being that there is merit in the appeal; and secondly, that if a stay is not granted, that the appeal would be rendered nugatory.

5.In the circumstances of this case, the defendant says that he is impecunious. There is a bankruptcy petition against him taken out by the plaintiff which is extant and which stands adjourned to await the outcome of this application.

6.Related to this there is also an issue as to whether the successful plaintiff is now resident in Hong Kong. It is suggested that he has now relocated himself to his native Australia following his retirement as a racehorse trainer.

7.As to the merits, these divide themselves between the outright judgment on the cheque for $500,000 and the balance of the judgment. Whilst one must remain as objective as possible in the face of an appeal against one's own judgment, the range of manoeuvre in an action on a cheque is limited. I am of the view that the defendant has not been able to show that there are reasonable prospects of success on an appeal from this part of the judgment.

8.As to the question of whether the appeal would be rendered nugatory because it might cause the defendant to go bankrupt, I have been shown correspondence by Mr Fung which indicates that the defendant would, with assistance from his family who would appear to be well established and well to do, be able to pay this amount.

9.This leaves over the question of whether the balance would tip the other way by virtue of the fact that the appeal might be rendered nugatory because the defendant may not be able to recover this amount from the plaintiff if he were to succeed because the plaintiff could make himself judgment-proof, as it were, by virtue of his absence from Hong Kong.

10.As to the plaintiff's absence from Hong Kong, whilst the evidence is not complete, there is a good prima facie case to be made that the plaintiff is really now living in Australia and only comes to Hong Kong for visits. Nevertheless, that is not enough in all the circumstances of this case to persuade me to grant a stay on this amount. I say that because in my judgment the prospects of success on the appeal as to this element of the judgment are far too illusory to justify a stay. I have considered whether I should merely order payment into court of this amount, but in all the circumstances I do not think it would be right to deprive the plaintiff, who in my view has a strong case, of his judgment and to force him to wait.

11.As to the major part of the judgment, $1.41 million, I am going to grant a stay. The matter is arguable. I have given leave to defend, albeit conditionally. The evidence does show that a refusal of a stay would cause the defendant substantial, if not catastrophic, financial consequences.

12.I will grant a stay on the remaining parts of the order. I appreciate that the condition, 56 to days to pay in, has passed and so the stay may be said to be academic in respect of that part of the order. Nevertheless, the whole of the position should be held pending the appeal.

Representation:

Mr Eugene Fung, instructed by Messrs Haldanes, for the Plaintiff

Mr Douglas Lam, instructed by Charles Wong & Co., for the Defendant