Mo Chi Man v. Young Wai Yi

HCMP007402/1999

HCMP7402/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.7402 OF 1999

---------------

----------------

--------------

Coram: Hon Cheung J in Chambers

Date of Hearing: 1 February 2000

Date of Judgment: 1 February 2000

-------------------------

J U D G M E N T

-------------------------

Three matters

1. There are three matters before me. First of all, an application by the defendant to appeal against the decision of the master refusing to stay the execution of a judgment granted against the defendant pending the appeal by the defendant; secondly, an application by the defendant to require the plaintiff to disclose documents (yesterday a further application by the defendant was lodged requiring the plaintiff to be cross-examined on the hearing of the appeal); thirdly, an application by the plaintiff for security for costs against the defendant in respect of the appeal.

Security for costs

2. As far as the application for security is concerned, the matter can be disposed of very quickly. The plaintiff relied on Order 55, rule 7(6) of the High Court Rules. Clearly the reference to this order is wrong. The order governing appeal from masters is Order 58. There is no provision under Order 58 for security for costs. Under Order 55, rule 1, it is provided that "subject to paragraphs (2), (3) and (4), this Order shall apply to every appeal which by or under any enactment lies to the Court of First Instance from any court, tribunal or person". The definition of "Court" in Order 1, rule 4(2) is not applicable because the reference to "Court" in that particular sub-rule is the Court of First Instance. The "Court" there appears with a capital letter "C" whereas the "court" in Order 55 is in small letters. I think they are referring to different courts and hence Order 55 is not applicable.

Stay of execution

3. As far as the defendant's appeal against the masters' decision on the stay of execution is concerned, the appeal will be heard on 1 March 2000. There clearly is an argument on whether the defendant, who is relying on the rights of a purchaser's lien, has the same rights as the vendor exercising his lien for unpaid purchase money. It is stated in Williams on Vendor and Purchaser, 4th Edn., p.988 that in certain circumstances, the vendor in exercising the lien may be led into possession again. While the defendant in this case may not have the right to possess the property after the provisional agreement for sale and purchase had been terminated, her right in exercising the purchaser's lien may not be that straightforward. The matters can only be fully argued on the appeal and at the meantime, the status must be preserved, otherwise the appeal would be rendered nugatory. For this reason, the defendant should be entitled to have a stay of execution of the judgment pending the determination of the appeal.

Discovery

4. In respect of the defendant's application for discovery, I would adjourn the summons for discovery to the appeal itself. Likewise, in respect of the defendant's summons for the cross-examination of the plaintiff, which was only issued yesterday, I would adjourn it to the hearing of the appeal as well.

Representation:

Mr M.K. Chan, of Messrs Yuen & Partners, for the Plaintiff

Mr Jeremy Cheung, instructed by Messrs Yolanda Fan & Co., for the Defendant