Ridge Ltd v. Golden Castle Ltd
Read the full judgment text of HCA 122/2005 on BabelCite. This High Court CFI judgment was delivered on 27 July 2005 before Sakhrani J.
Civil procedure – stay of execution – appeal – O.47 r.1 – second application for stay of execution on same grounds – whether permissible after first application dismissed by a Master – whether remedy is by appeal to a higher court – defendant obtained two orders from Master Au-yeung on 29 June 2005 – defendant issued notice of appeal on 6 July 2005 with appeal fixed for 5 August 2005 – defendant applied by summons on 8 July 2005 before the Master for a stay of execution under O.47 r.1 – Master dismissed the stay application on 13 July 2005 – defendant then filed a further summons dated 15 July 2005 before a judge seeking the same stay on the same grounds – plaintiff took preliminary point that the second summons was misconceived – issue whether a second stay application may be brought on the same grounds after dismissal by a Master – court referred to principle in Hong Kong Civil Procedure 2004 and Sanyo Electric Trading Co. Ltd v. Leung Kwok Hing [1993] 1 H.K.L.R. 253 that a judgment debtor cannot make a further stay application on the same grounds – proper remedy is appeal to a higher court – second summons held to be misconceived and dismissed.
Legal issues: Whether a second application for stay of execution under O.47 r.1 is permissible on the same grounds after a first application was dismissed by a Master
Outcome: Defendant's summons for a stay of execution pending appeal dismissed as misconceived.
Cited by 2 cases · Cites 1 case
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HCA 122/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 122 OF 2005 BETWEEN
Before : Hon Sakhrani J in Chambers Date of Hearing : 27 July 2005 Date of Decision : 27 July 2005 _________________________ D E C I S I O N _________________________ 1.This is an application by the defendant by summons dated 15 July 2005 for an order that the orders made by Master Au-yeung on 29 June 2005 be stayed pending the appeal fixed for hearing on 5 August 2005. 2.Mr. Wong, for the plaintiff, takes a preliminary point that the summons is misconceived. 3.As is apparent from the submissions and the documents in the bundle placed before me, the defendant issued its notice of appeal on 6July 2005. On 8 July 2005 the defendant issued a summons returnable before Master Au-yeung for a stay of execution of the two orders made by her on 29 June 2005 pending appeal which has been fixed for 5 August 2005. That summons was issued under O.47, r.1. 4.The summons before me is also for a stay of execution pending appeal also issued under O.47, r.1. 5.Master Au-yeung dealt with the application before her for a stay on 13 July 2005. After hearing submissions she dismissed that application. 6.Instead of appealing her order for dismissal of that application the plaintiff applies by summons before me for the same relief and on the same grounds. It is stated at para. 47/1/2 of Hong Kong Civil Procedure 2004 that :
7.I accept the submission of Mr. Wong that the summons before me is misconceived. Having heard the submissions made to me I am satisfied that the summons has to be dismissed.
Mr. C. K. Wong of Messrs Charles Yeung Clement Lam Liu & Yip, for the plaintiff Mr. Raymond Chung of Messrs Chung, Fong & Co., for the defendant |
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