Bank of China (Hong Kong) Ltd v. Leung Wah and Another

HCMP 1634/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1643 OF 2009

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	IN THE MATTER of a Property comprised in a Charge dated 4 June 1998 and registered in the Land Registry by Memorial No.7507959, namely, Unit 6 on 5th Floor of Block 29, Heng Fa Chuen, No.100 Shing Tai Road, Hong Kong
	and
	IN THE MATTER of Order 88 Rule 1 and Order 28 of the Rules of the High Court

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 2 June 2010

Date of Decision: 2 June 2010

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D E C I S I O N

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1.I will allow this application for stay, for the reason that if I do not, the bank is going to sell the flat.

2.The flat is a piece of real property that the defendants have worked very hard for many years to acquire.  No doubt it has some special value to them and means something special to them.

3.I think if they intend to go to the Court of Appeal and prosecute the appeal diligently, I should not deprive them of the opportunity of preserving this piece of property and I do think that there appear to be merits in the appeal.

4.My decision is not based on any intention on the part of the defendants to adduce fresh evidence.

5.I also think that the bank’s interest is to get back what is owed to it by the defendants, if any.  Bearing in mind the current value of the flat and there is unlikely to be a very steep dive in the property market in the next nine months to a year, it is unlikely that, if the appeal should be dismissed, the bank would be prejudiced in terms of recovery of the loan, interests, expenses, legal costs and whatever it may have to incur for realising the flat, if need be.

6.I will stay the execution of my judgment pending the prosecution of the appeal on the undertaking by the defendants to prosecute the appeal diligently.  That means if the defendants should fail in so doing, it is open to the plaintiff to apply to lift the stay.

7.Finally, I order that costs of this application be in the appeal.  I allow a certificate for counsel because I think counsel’s attendance is justified in this matter.

Ms Mabel Kwan, of Messrs Gallant Y T Ho & Co., for the Plaintiff

Mr Patrick Wong, instructed by Messrs C K Mok & Co., for the 1st and 2nd Defendants