MING HSIEH v. XU ZHE AND OTHERS

MING HSIEH v. XU ZHE AND OTHERS

Although the Plaintiff established an arguable appeal, the court refused the stay because the risk of the appeal being rendered nugatory without a stay was negligible given the Defendants' undertaking not to dispose of a high-value Property, the Property's value substantially exceeded the judgment sum, there was an outstanding mortgage, the Defendants were detained, and the Plaintiff faced substantial costs liability; accordingly the balance weighed against granting a stay.

Citation
[2018] HKCFI 599
Parties
Plaintiff: Ming Hsieh; 1st Defendant: Xu Zhe; 2nd Defendant: Tan Jiangxia; 3rd Defendant: Xu Ziqing; 4th Defendant: HK Golden Crown Optical Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 February 2018
Case Number
HCMP3072/2014
Procedural Posture
Stay of Execution Application Pending Appeal (miscellaneous Proceedings) / Decision on Stay Application (interlocutory)
Outcome
Stay of execution refused
Legal Topics
Stay of Execution, Arable/arguable Appeal, Nugatory Appeal Risk, Mareva Injunction Discharge, Undertaking as to Damages, Taxation of Costs
Source Language
EN
Civil Procedure Appeal Injunctions Damages Costs Property Stay of Execution Arable/arguable Appeal +4 more

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Parties

Ming Hsieh

Plaintiff

Xu Zhe

1st Defendant

Tan Jiangxia

2nd Defendant

Xu Ziqing

3rd Defendant

HK Golden Crown Optical Limited

4th Defendant

Procedural Posture

Stay of Execution Application Pending Appeal (miscellaneous Proceedings) / Decision on Stay Application (interlocutory)

Legal Issues

  1. 1 Whether there is an arguable appeal
  2. 2 Whether the appeal would be rendered nugatory if a stay is not granted
  3. 3 Whether the balance of convenience and undertakings justify refusing a stay

Ratio Decidendi

Although the Plaintiff established an arguable appeal, the court refused the stay because the risk of the appeal being rendered nugatory without a stay was negligible given the Defendants' undertaking not to dispose of a high-value Property, the Property's value substantially exceeded the judgment sum, there was an outstanding mortgage, the Defendants were detained, and the Plaintiff faced substantial costs liability; accordingly the balance weighed against granting a stay.

Court Disposition

Stay of execution refused

Orders

  • Stay of execution pending appeal refused