Cheung Chi Po v. Jun Xiang

CACV 170/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 2011

(ON APPEAL FROM HCA No. 1168 OF 2009)

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BETWEEN

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Before : Hon Cheung, Yuen and Chu JJA in Court

Date of Hearing : 19 October 2012

Date of Decision : 19 October 2012

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D E C I S I O N

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1.This is the defendant’s application for

1)  leave to appeal to the Court of Final Appeal against our judgment of 17 April 2012 and

2.an extension of time to comply with the condition imposed in our judgment requiring the defendant to pay into court within 28 days the sum of HK$25 million in order to set aside the default judgment dated 10 June 2009.

2.  In respect of the first application, the defendant submits that the appeal involves a question of great general or public importance, namely,

‘ Whether the Court should impose a condition of making payment into court for setting aside a regular default judgment if the defence advanced is considered to be shadowy as the test for setting aside a regular default judgment is whether the defendant can show a defence with a real prospect of success so that in setting aside a default judgment the court must have accepted that the defence has a real prospect of success even if the same is considered shadowy and hence no condition should be imposed.’

3.The defendant also relies upon the ‘or otherwise’ ground.

4.In our view the jurisdiction to impose condition is well established and our judgment to impose the condition was fact specific.  The question framed by the defendant is simply not engaged in this case.

5.We will also refuse to grant leave on the ‘or otherwise’ limb.  The defendant was well aware of the demand by the plaintiff to impose condition.  The defendant had not until his affirmation dated 15 May 2012 indicated that he would not be able to pay the money.  The defendant has not shown any special ground why his affirmation should be accepted at this stage of the proceedings.

6.Although the defendant asks for a stay of the judgment in his written submission, he has not issued any summons in that regard.  In any event, as we have refused leave, there should not be any stay of the judgment.

7.Further, as the defendant already had five months to comply with the condition, we see no reason why he should be given time to comply with the condition.

8.The applications are accordingly refused with costs to the plaintiff with certificate for one counsel.

Ms Audrey Eu SC and Ms Doris Ho, instructed by Yu Tsang & Loong, for the Plaintiff

Mr Martin Wong, instructed by Chong & Partners, for the Defendant