IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 2523 OF 2004
Before : Hon Waung J in Chambers (Open to Public)
Date of Hearing : 5 December 2006
Date of Judgment : 5 December 2006
J U D G M E N T
1. I have an application before me by the defendants for stay of execution pending appeal from a judgment of mine that was given extemporaryon the 26th of September 2006 at the trial of the action.
2. The reason that has been put forward by the defendants for the stay of execution under the summons is that there are strong groundsfor an appeal to be successful. I have looked at the grounds of appeal. I have also heard the argument of Mr Sherry as well asread his skeleton submission and that of Mr Man. The application for stay is opposed.
3. This is a highly unusual application for a stay because the defendants’ position is that they are willing to pay the money intocourt. They are able to pay the money into court. There is no allegation that the plaintiff is financially not able to repay themoney. In fact, it is admitted that the plaintiff is a substantial company. And yet the defendants submit that there should bea stay of execution on the basis that the money be paid into court and to prevent the usual execution whereby the plaintiff is entitledto the fruit of its judgment, namely, have the judgment sum paid to the plaintiff. Now this is unusual because when there is noallegation that their appeal will be rendered nugatory if execution is not stayed, and when there is no suggestion that the defendantsare unable to pay or will be ruined because of the execution and the only argument really is that there is a strong ground of appealthat therefore there should be this what I will call somewhat unusual order that is sought.
4. In the circumstances, I have carefully looked at the grounds of appeal. I agree with the skeleton argument of Mr Man that notwithstandingthose grounds of appeal – I hope it is not invidious for this court to say so – I don’t see that there is an overwhelming groundor even a very strong ground, maybe an arguable ground but no more than that. In the circumstances, it seems to me wholly inappropriatefor the court to exercise its discretion to allow the plaintiff to be deprived of the fruit of the judgment. I think these shouldbe the usual course that the judgment sum should be paid, and when the appeal, if successful, the plaintiff can repay the money tothe defendants with interest. That is therefore my conclusion and the application for stay therefore is refused with cost. I proposeto make a gross sum assessment of the cost.
Gross Sum Assessment
5. The figure put forward by the plaintiff for the gross sum assessment of the cost of the present application which has failed is $30,000for the total fees of counsel, not just for the brief, and $16,000 for Mr Leung who is a senior solicitor admitted in 1975, chargingat $4000 an hour at four hours. This sum of $46,000 is opposed by Mr Sherry on the basis that it is grossly excessive, that counsel’sfee should be reduced by half and solicitor’s hourly rate, although not challenged, the number of hours spent should be reducedto two hours.
6. In my view, this is not such a straightforward application. As I have said in my judgment, this is a very unusual application, andthe grounds of appeal would disclose that much area has been further expanded from what took place in the court below. I am notin any way casting any adverse comment on the fact that the defendants rely on larger ground but there is simply more work that requiredto be done by the plaintiff. I think in all the circumstances, the $46,000 put forward by the plaintiff is wholly reasonable. Itherefore allow in whole the costs put forward by the plaintiff. The sum I assess as the sum payable by the defendants to the plaintiffon this failed application for stay of execution is $46,000 which is to be payable forthwith.
Mr Bernard Man, instructed by Messrs Wilkinson & Grist, for the Plaintiff
Mr James Sherry, instructed by Messrs Minter Ellison, for the 1st and 2nd Defendants