Kok Meau Ngor, Jennifer v. Eberhard Schoneburg
|
DCCJ 4897/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4897 OF 2005 ------------------------------ BETWEEN
------------------------------ Coram : Deputy District Judge K. Lo in Chambers (open to public) Date of Hearing : 11th December 2007 Date of Handing Down Decision : 19th December 2007 ------------------------------ DECISION ------------------------------ 1.The Defendant, by a summons dated 26 November 2007, applied for:-
First Application Application for Leave to Appeal 2.The test in Smith v. Cosworth Casting Process [1997] WLR 1538 cited and approved in the Court of Appeal Case of Ma Bik Yeung v. Ko Chuen HCMP 4303/1999， 8 September 1999 states that the Court will only refuse leave if satisfied that the Applicant has no realistic prospect of success in the appeal. Ground 1 3.Coming to the first ground of appeal, clearly this is a finding of fact that though the Plaintiff had shouldered all the living expenses of the parties whilst they cohabited, there was the agreement between the parties that the Defendant was to repay the Plaintiff as and when the Defendant was able to do so. The conduct of the parties subsequent to their breaking up in discussing and agreeing to the figure of $100,000 being the Defendant’s share of living expenses and the Defendant’s acknowledgment of such a sum being due to the Plaintiff clearly supported this finding. 4.The Defendant, of his own volitions amended the draft loan agreement prepared by Plaintiff’s Solicitors and incorporate this $100,000 in the loan agreement. The emails exchanged between the parties was clearly supportive of the Defendant’s acknowledgment of this loan of $100,000. 5.It was said by counsel for the Defendant that the Plaintiff when cross-examined, did reply “there is no agreement, yes” to the question “when Defendant moved in with you, there is no agreement with you that you will keep track of living expenses and he would repay you on certain Agreement.” 6.The question posed to the Plaintiff comprised actually of 2 limbs, I do not find the answer a clear admission by the Plaintiff that the Defendant did not agree to repay his share of living expenses prior to or during cohabitation. It is an undisputed fact that the parties did not arrange to record each expenditure items when they cohabited. 7.The evidence before this Court clearly did not support the Defendant’s pleaded case that he had paid for his living expenses during their cohabitation. 8.Evidence showed though the parties had been negotiating from time to time on the extension of deadline for repayment by the Defendant, the amount of living expenses having been agreed at $100,000. 9.The finding on the agreement to repay loan of $100,000 of the Court is consistent with the Plaintiff’s pleaded case and the totality of evidence before the Court. Ground 2 10.It is a finding of fact by this Court that the parties had treated the Allotment Agreement between them as cancelled as for reasons set out in paragraphs 35 to 46 of the Judgment. 11.It was also the Plaintiff’s pleaded case (see paragraph 4 of Reply) that the Allotment Agreement was cancelled and accepted by the Defendant. The Plaintiff had in her witness statements also set out the same. 12.Although this Court did not accept the Plaintiff’s case that she could withdraw from the Allotment Agreement any time before the completion of sale and purchase of the shares as of right, as the Defendant had agreed to the cancellation, the Allotment Agreement was cancelled. 13.In the circumstances, there is no realistic prospect of success in the pending appeal and this Court refused this application for leave. Second Application Stay of Execution pending Appeal 14.On the Defendant’s admission in Court, the Company did not cause the application for shares to be approved by the Board of the Company nor did they further proceed with the share allotment application of the Plaintiff. 15.In support of the present application, the Defendant’s solicitors in her affirmation deposed that the Defendant has good prospects of appeal and they are willing to make payment of the Judgment sum into Court. 16.It is settled principle that the Plaintiff should not be deprived of the fruits of Judgment except on good grounds and that a pending appeal does not by itself operate as a stay of execution. 17.In this case, the appeal would not be rendered nugatory should stay of execution be refused nor would the Defendant suffer loss which could not be compensated in damages. 18.There is no evidence that the Plaintiff, a Hong Kong resident is leaving Hong Kong. 19.Further, according to the Defendant’s own evidence, he is a successful businessman, will therefore not suffer financial hardship on payment of judgment sum. 20.The chance of success of pending appeal, as found by this Court, is not realistic. 21.In the absence of good and special reasons, the application for stay of execution is also refused. 22.It is also ordered that all costs of and incidental to this application be to the Plaintiff in any event, the same to be taxed if not agreed, with certificate for counsel.
Representation: Mr Alfred Ip, instructed by Messrs Oldham, Li & Nie, for the Plaintiff Mr Edward Alder, instructed by Messrs Richards Butler, for the Defendant |
Cases cited in this judgment
Further hearings and rulings under DCCJ 4897/2005