TSUI PO HING AND ANOTHER v. SK KAKEN CO LTD AND ANOTHER

TSUI PO HING AND ANOTHER v. SK KAKEN CO LTD AND ANOTHER

An interim stay of execution was granted until the conclusion of the Case Management Conference in HCA 16850/1998 (10 June 2010) because the applicant has a real prospect of success on a substantial counterclaim such that immediate execution and potential bankruptcy would risk stifling that claim; however the stay is time‑limited rather than open‑ended because the collateral action is under another judge and further judicial assessment is appropriate at the CMC.

Citation
TSUI PO HING AND ANOTHER v. SK KAKEN CO LTD AND ANOTHER
Parties
1st Plaintiff / Applicant: Tsui Po Hing; 2nd Plaintiff: Tsui Po Cheung; 1st Defendant: SK KAKEN company limited; 2nd Defendant: skk (HK) company limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 April 2010
Case Number
HCCL42/2004
Procedural Posture
Commercial Action (hccl 42 of 2004) / Interlocutory Application for Stay of Execution of Taxed Costs
Outcome
Application granted in part: interim stay of execution ordered until conclusion of Case Management Hearing on 10 June 2010
Legal Topics
Stay of Execution, Taxation of Costs, Bankruptcy Petition, Interim Relief, Case Management, Counterclaim, Abuse of Process
Source Language
EN
Civil Commercial Bankruptcy Civil Procedure Costs Stay of Execution Taxation of Costs Bankruptcy Petition +4 more

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Parties

Tsui Po Hing

1st Plaintiff / Applicant

Tsui Po Cheung

2nd Plaintiff

SK KAKEN company limited

1st Defendant

skk (HK) company limited

2nd Defendant

Procedural Posture

Commercial Action (hccl 42 of 2004) / Interlocutory Application for Stay of Execution of Taxed Costs

Legal Issues

  1. 1 Whether an interim stay of execution of taxed costs should be granted pending resolution of a collateral High Court action (HCA 16850/1998)
  2. 2 Whether the applicant's counterclaim in the collateral action has sufficient prospect of success to justify a stay
  3. 3 Whether permitting execution and consequent bankruptcy would unjustly stifle the applicant's claim

Ratio Decidendi

An interim stay of execution was granted until the conclusion of the Case Management Conference in HCA 16850/1998 (10 June 2010) because the applicant has a real prospect of success on a substantial counterclaim such that immediate execution and potential bankruptcy would risk stifling that claim; however the stay is time‑limited rather than open‑ended because the collateral action is under another judge and further judicial assessment is appropriate at the CMC.

Court Disposition

Application granted in part: interim stay of execution ordered until conclusion of Case Management Hearing on 10 June 2010

Orders

  • Interim stay of execution of the taxed costs awarded to the defendants in HCCL 42 of 2004 to run until conclusion of the Case Management Hearing in HCA 16850 of 1998 scheduled before Mr Justice Anthony To on 10 June 2010
  • Applicant Mr Tsui Po Hing liberty to renew application for a stay of execution at the conclusion of that Case Management Hearing