KAILAY ENGINEERING CO. (HK) LTD. v. YAU LEE CONSTRUCTION CO. LTD.

KAILAY ENGINEERING CO. (HK) LTD. v. YAU LEE CONSTRUCTION CO. LTD.

The court refused the stay because the defendant failed to discharge the burden of proving there was no reasonable prospect of the plaintiff recovering the judgment sum if paid; the court refused to consider the defendant's "new evidence" as unwarranted second bite; accordingly the stay application was dismissed and costs were ordered against the defendant to be paid forthwith.

Citation
KAILAY ENGINEERING CO. (HK) LTD. v. YAU LEE CONSTRUCTION CO. LTD.
Parties
Plaintiff: Kailay Engineering Co. (HK) Ltd.; Defendant: Yau Lee Construction Co. Ltd.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 September 1999
Case Number
HCCT74/1999
Procedural Posture
Construction and Arbitration / Post Summary Judgment Stay Application Pending Appeal
Outcome
Application for stay of execution dismissed; defendant's new evidence not admitted
Legal Topics
Summary Judgment, Stay of Execution Pending Appeal, Burden of Proof, Admissibility of New Evidence, Costs
Source Language
EN
Civil Procedure Construction Law Enforcement of Judgment Insolvency and Credit Summary Judgment Stay of Execution Pending Appeal Burden of Proof Admissibility of New Evidence +1 more

Case Brief

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Parties

Kailay Engineering Co. (HK) Ltd.

Plaintiff

Yau Lee Construction Co. Ltd.

Defendant

Procedural Posture

Construction and Arbitration / Post Summary Judgment Stay Application Pending Appeal

Legal Issues

  1. 1 Whether a stay of execution pending appeal should be granted
  2. 2 Whether the defendant's "new evidence" should be admitted at this stage
  3. 3 What evidential burden lies on an applicant for a stay of execution

Ratio Decidendi

The court refused the stay because the defendant failed to discharge the burden of proving there was no reasonable prospect of the plaintiff recovering the judgment sum if paid; the court refused to consider the defendant's "new evidence" as unwarranted second bite; accordingly the stay application was dismissed and costs were ordered against the defendant to be paid forthwith.

Court Disposition

Application for stay of execution dismissed; defendant's new evidence not admitted

Orders

  • Application for stay of execution dismissed
  • Defendant ordered to pay Plaintiff's costs of this summons to be taxed if not agreed and to be paid forthwith