Read the full judgment text of FAMP 000002/2003 on BabelCite. This FAMP judgment was delivered on 11 August 2003 before Ribeiro PJ.
Civil procedure – stay of execution – inherent jurisdiction – Court of Final Appeal – section 26 Court of Final Appeal Ordinance – letter of credit – implied contract – restitution – money had and received – appeal rendered nugatory – proprietary rights – security for claim – In 1998, the plaintiff arranged a letter of credit for US$401,620 in favour of the defendant. After trial, Stone J gave judgment for the plaintiff and ordered the defendant to pay US$401,394.84 plus interest, but stayed execution pending appeal on condition that the defendant pay the sum into court. The Court of Appeal allowed the defendant's appeal and dismissed the plaintiff's claim. The plaintiff sought leave to appeal to the Court of Final Appeal and applied for a stay of execution of the Court of Appeal's judgment to keep the sum in court pending the final appeal. The Court of Final Appeal held that section 26 of the Court of Final Appeal Ordinance only applies where the judgment appealed from requires the appellant to pay money or perform a duty, which was not the case here. The court has inherent jurisdiction to grant a stay beyond section 26 to prevent an appeal from being rendered nugatory, but this does not extend to overriding a respondent's proprietary rights in funds paid into court as a condition of a stay of a reversed judgment. The defendant paid its own money into court as a condition for a stay of the original judgment; once that judgment was reversed, the defendant became entitled to its money back. Ordering the funds to remain in court would effectively require the respondent to provide security for the appellant's unsuccessful claim. The application was dismissed and the sum in court ordered to be paid out to the defendant's solicitors.
Legal issues: Inherent jurisdiction to grant stay of execution pending appeal
Outcome: Application for stay of execution dismissed.
Cites 2 cases