THE YERRID LAW FIRM v. QIANSBAIZI TRADING LTD AND ANOTHER

THE YERRID LAW FIRM v. QIANSBAIZI TRADING LTD AND ANOTHER

A garnishee order absolute is a procedural enforcement measure which does not determine in a summary way the substantive rights of a party to the action; therefore leave to appeal is required under the rules, but leave to appeal was granted out of time in this case because the matter was already before the Court of Appeal on the related appeal against the default judgment and there was an interest of justice in hearing the appeal; a stay of execution was granted because there was a real risk that allowing enforcement would render the appeal nugatory.

Citation
[2021] HKCFI 1578
Parties
Plaintiff (judgment Creditor): The Yerrid Law Firm; 1st Defendant: qiansbaizi trading limited; 2nd Defendant (judgment Debtor): tin tat TRADING co., limited; Garnishee: china citic bank international limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 June 2021
Case Number
HCA2271/2019
Procedural Posture
Garnishee Proceedings in Civil Enforcement of Judgment / Application for Leave to Appeal, Extension of Time and Stay of Execution; Decision on Summons (paper Disposal)
Outcome
Time for applying for leave extended; leave to appeal against the garnishee order granted out of time; stay of execution of the Order granted pending determination of CACV170/2021 and the granted appeal; costs in the cause with certificate for two counsel.
Legal Topics
Garnishee Order, Leave to Appeal, Stay of Execution, Default Judgment, Extension of Time
Source Language
EN
Civil Procedure Enforcement Appeal Garnishment Judgment Debt Enforcement Garnishee Order Leave to Appeal Stay of Execution +2 more

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Parties

The Yerrid Law Firm

Plaintiff (judgment Creditor)

qiansbaizi trading limited

1st Defendant

tin tat TRADING co., limited

2nd Defendant (judgment Debtor)

china citic bank international limited

Garnishee

Procedural Posture

Garnishee Proceedings in Civil Enforcement of Judgment / Application for Leave to Appeal, Extension of Time and Stay of Execution; Decision on Summons (paper Disposal)

Legal Issues

  1. 1 Whether a garnishee order absolute is an order determining in a summary way the substantive rights of a party to an action (and thus appealable as of right)
  2. 2 Whether leave to appeal against the garnishee order should be granted out of time
  3. 3 Whether a stay of execution of the garnishee order should be granted pending appeal

Ratio Decidendi

A garnishee order absolute is a procedural enforcement measure which does not determine in a summary way the substantive rights of a party to the action; therefore leave to appeal is required under the rules, but leave to appeal was granted out of time in this case because the matter was already before the Court of Appeal on the related appeal against the default judgment and there was an interest of justice in hearing the appeal; a stay of execution was granted because there was a real risk that allowing enforcement would render the appeal nugatory.

Court Disposition

Time for applying for leave extended; leave to appeal against the garnishee order granted out of time; stay of execution of the Order granted pending determination of CACV170/2021 and the granted appeal; costs in the cause with certificate for two counsel.

Orders

  • Time to apply for leave to appeal extended to 15 April 2021
  • Leave to appeal against the Garnishee Order granted on the grounds set out in the draft Notice of Appeal appended to D2's summons