MA PO CHIM, PERCY AND OTHERS v. LEE TUNG HAI, LEO AND OTHERS

MA PO CHIM, PERCY AND OTHERS v. LEE TUNG HAI, LEO AND OTHERS

The application to stay execution was dismissed because the Association failed to demonstrate good reasons: it did not show the appeal would be rendered nugatory nor that the appeal was almost bound to succeed. The Association's grounds were at best arguable and not overwhelmingly in its favor; Horwath's role was administrative and factual disputes (including unsigned fee agreements) meant the appeal was not almost certain to succeed; Horwath offered a bank guarantee and the court should not stay execution on the present material.

Citation
MA PO CHIM, PERCY AND OTHERS v. LEE TUNG HAI, LEO AND OTHERS
Parties
Applicants/petitioners: Petitioners; 3rd Respondent: Chungshan Commercial Association; 4th Respondent: Mo Loong Kwong; 5th Respondent: Lee Dai Chung; 6th Respondent: Yuen Cho Mo; Independent Professional/fee Claimant: Horwath Corporate Advisory Services Ltd.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 June 2007
Case Number
HCMP3253/2004
Procedural Posture
Application Under S.168 a Companies Ordinance Concerning Stay of Execution Pending Appeal and Taxation Basis of Fees / Interim Application Heard in Chambers; Application to Stay Execution Dismissed on 13 June 2007; Reasons Handed Down 20 June 2007
Outcome
Application to stay execution dismissed
Legal Topics
Stay of Execution Pending Appeal, Basis of Taxation of Fees (trustee Vs Common Fund), Right to Be Heard, Appointment and Remuneration of Independent Professionals
Source Language
EN
Companies Law Civil Procedure Costs and Taxation of Costs Appeals Stay of Execution Pending Appeal Basis of Taxation of Fees (trustee Vs Common Fund) Right to Be Heard Appointment and Remuneration of Independent Professionals

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Parties

Petitioners

Applicants/petitioners

Chungshan Commercial Association

3rd Respondent

Mo Loong Kwong

4th Respondent

Lee Dai Chung

5th Respondent

Yuen Cho Mo

6th Respondent

Horwath Corporate Advisory Services Ltd.

Independent Professional/fee Claimant

Procedural Posture

Application Under S.168 a Companies Ordinance Concerning Stay of Execution Pending Appeal and Taxation Basis of Fees / Interim Application Heard in Chambers; Application to Stay Execution Dismissed on 13 June 2007; Reasons Handed Down 20 June 2007

Legal Issues

  1. 1 Whether execution of orders directing taxation of fees on trustee basis should be stayed pending appeal
  2. 2 Whether Horwath falls within category of "other officers" entitling it to trustee basis taxation
  3. 3 Whether the Association was deprived of a right to be heard before the fee orders were made

Ratio Decidendi

The application to stay execution was dismissed because the Association failed to demonstrate good reasons: it did not show the appeal would be rendered nugatory nor that the appeal was almost bound to succeed. The Association's grounds were at best arguable and not overwhelmingly in its favor; Horwath's role was administrative and factual disputes (including unsigned fee agreements) meant the appeal was not almost certain to succeed; Horwath offered a bank guarantee and the court should not stay execution on the present material.

Court Disposition

Application to stay execution dismissed

Orders

  • Application dismissed
  • Costs to follow the event