Hsbc Private Trustee (Hong Kong) Ltd v. Au-yeung Chung

HCA1662/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1662 OF 2001

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Coram:  Deputy High Court Judge Carlson in Chambers

Date of Hearing: 11 April 2008

Date of Ruling:  11 April 2008

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R U L I N G

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1.I am going to decline a stay of execution, simply because I do not consider that this appeal would be nugatory.  The fact is that the defendant and her family have rather lost interest in this land, save, of course, for the very real interest which lies in its monetary value and if the defendant were to succeed on appeal, then I have absolutely no doubt that she would be properly compensated for having succeeded in the appeal by the plaintiffs, if, in fact, they had by then been fortunate enough to secure a sale of the land before the appeal was resolved.  This is not a case of an appeal being nugatory and that is why I am going to refuse a stay.

2.So far as the apportionment of the costs is concerned - I think Mr Shaw is right - one can only apply a very broad appreciation to this.  My sense of it is that more of the time and the preparation would have been given to the defence of the counterclaim and so 60/40, 60 per cent in relation to the counterclaim and 40 per cent in relation to the claim, would be broadly correct.

3.Then so far as the directions as to mesne profits, for that hearing I think two days is appropriate.  I would not have thought it will cause a particularly longer delay in coming on.  I think it is better to play safe.  This case has already suffered from inadequate time estimates and I would not like to go off on, as it were, a losing note by also getting this estimate wrong.  I think two days is right.

Geoffrey Shaw, of Messrs Deacons, for the Plaintiff

Patrick Szeto, instructed by Messrs Ho, Tse, Wai & Partners, for the Defendant