Donpower Trading Ltd v. Apexcom Ltd
Read the full judgment text of CACV 172/2009 on BabelCite. This Court of Appeal judgment was delivered on 24 February 2010.
1. By judgment dated 27 January 2010 this Court allowed the appeal of the defendant and ordered the plaintiff to return the deposit of $1.5 million to the defendant.
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CACV172/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 172 OF 2009 (On Appeal from High Court Miscellaneous Proceedings No. 2095 of 2008) __________________________ BETWEEN
__________________________ Before : Hon Cheung JA in Chambers Date of Hearing : 24 February 2010 Date of Decision : 24 February 2010 Date of Reasons for Decision : 26 February 2010 __________________________ REASONS FOR DECISION __________________________ Stay of Execution 1.By judgment dated 27 January 2010 this Court allowed the appeal of the defendant and ordered the plaintiff to return the deposit of $1.5 million to the defendant. 2.The plaintiff by summons dated 17 February 2010 asked for stay of execution of the judgment pending its intended appeal of that judgment. At the conclusion of the hearing I refused the application and ordered costs of the application against the plaintiff. Interim application 3.Although the relief sought was for stay pending the intended appeal, in fact the plaintiff has only filed in Court a Notice of Motion for leave to appeal to the Court of Final Appeal. The plaintiff has not applied for a hearing date of the motion which stated that this Court ‘will be moved on a date to be notified’. Hence, at most, the application can only be one seeking an interim stay until the hearing of the motion for leave to appeal. No explanation has been offered as to why after the issue of the summons a hearing date has still not been applied for. No reasonable prospect of success of appeal 4.In any event I refused the application because I was not satisfied that the plaintiff has a reasonable prospect of success of the appeal. This is the first hurdle that the plaintiff must overcome even if it is entitled to appeal to the Court of Final Appeal as of right because of the nature of the claim. The fact that the Court below had given a different view from the unanimous view of this Court on whether the defendant had waived the production of a document sought in requisition does not advance the plaintiff’s case further on this point. The fact that the defendant is a BVI company is, of course, relevant, but this consideration will only become relevant if the plaintiff demonstrates that it has a reasonable prospect of success of the appeal in the first place. In my view the principle that a successful litigant should not be deprived of the fruit of the litigation is applicable. Accordingly the application was refused.
Mr. Raymond Lau, instructed by Messrs Leung, Tam & Wong, for the Plaintiff Mr Alexander H. F. Cheung, instructed by Messrs Tso Au Yim & Yeung, for the Defendant |
Further hearings and rulings under CACV 172/2009