FRIENDO INCORPORATED v. COSMOS MANOR DEVELOPMENT LTD

FRIENDO INCORPORATED v. COSMOS MANOR DEVELOPMENT LTD

The summons was dismissed because the applicant filed no affidavit demonstrating matters arising since the judgment to justify a stay under Order 45 r11, and because an Order staying the 7 November 2003 judgment would not prevent enforcement of the separate possession order nor enable the non-party applicant to remain in occupation; accordingly there was no basis for a stay under Order 59 r13 or for an interim stay.

Citation
FRIENDO INCORPORATED v. COSMOS MANOR DEVELOPMENT LTD
Parties
Plaintiff (respondent): Friendo Incorporated; Defendant (applicant): Cosmos Manor Development Limited (carrying on business as Fook Sing Hot Pot)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 November 2003
Case Number
HCA1661/2003
Procedural Posture
Civil: Application for Stay of Execution Pending Appeal / Post Judgment Interlocutory Application (application Under Order 45 R11 and Order 59 R13)
Outcome
Applicant's summons dismissed; interim stay refused; costs to plaintiff against applicant, to be taxed if not agreed.
Legal Topics
Stay of Execution, Order 45 Rule 11, Order 59 Rule 13, Locus Standi, Interim/temporary Stay, Mesne Profits, Summary Judgment for Possession
Source Language
EN
Civil Procedure Appeals Possession Interim Relief Costs Stay of Execution Order 45 Rule 11 Order 59 Rule 13 +4 more

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Parties

Friendo Incorporated

Plaintiff (respondent)

Cosmos Manor Development Limited (carrying on business as Fook Sing Hot Pot)

Defendant (applicant)

Procedural Posture

Civil: Application for Stay of Execution Pending Appeal / Post Judgment Interlocutory Application (application Under Order 45 R11 and Order 59 R13)

Legal Issues

  1. 1 Whether applicant established matters occurring since judgment that affect validity to justify a stay under Order 45 r11
  2. 2 Whether a stay pending appeal under Order 59 r13 should be granted given risk of appeal being rendered nugatory, inability to be compensated, or ruin
  3. 3 Whether the applicant has locus standi to seek a stay of the possession judgment

Ratio Decidendi

The summons was dismissed because the applicant filed no affidavit demonstrating matters arising since the judgment to justify a stay under Order 45 r11, and because an Order staying the 7 November 2003 judgment would not prevent enforcement of the separate possession order nor enable the non-party applicant to remain in occupation; accordingly there was no basis for a stay under Order 59 r13 or for an interim stay.

Court Disposition

Applicant's summons dismissed; interim stay refused; costs to plaintiff against applicant, to be taxed if not agreed.

Orders

  • The applicant's summons is dismissed.
  • The applicant's oral application for an interim stay of the judgment of 7 November 2003 is refused.