YIM TIN FOOK AND ANOTHER v. YU CHOR LAI, KONG WAI HUNG and SOU KA LUN t/a WANG CHEUNG INDUSTRIAL CHEMICALS CO AND ANOTHER

YIM TIN FOOK AND ANOTHER v. YU CHOR LAI, KONG WAI HUNG and SOU KA LUN t/a WANG CHEUNG INDUSTRIAL CHEMICALS CO AND ANOTHER

The court found D2 had demonstrated an arguable appeal and sufficient risk of complex, difficult or irreversible prejudice to the compound and structures to justify a stay of execution of the demolition and actual possession orders pending final determination of the appeal, but D2 failed to show good reason to stay other orders (assessment of mesne profits and costs), which were refused.

Citation
[2020] HKCFI 337
Parties
1st Plaintiff (original Action); 1st Defendant (counterclaim): YIM TIN FOOK; 2nd Plaintiff (original Action); 2nd Defendant (counterclaim): YIM TIN YAU; 1st Defendant (original Action): YU CHOR LAI; 1st Defendant (original Action): KONG WAI HUNG; 1st Defendant (original Action): SOU KA LUN; Trading Name of 1st Defendant: WANG CHEUNG INDUSTRIAL CHEMICALS CO; 2nd Defendant (original Action); Plaintiff (counterclaim) Representing Estate: TO CHEONG LAM (deceased) represented by TO SZE ON; 3rd Defendant (counterclaim): CHAN HI; 4th Defendant (counterclaim): YEUNG HON SANG; 5th Defendant (counterclaim): CHAN WAI KIN; 5th Defendant (counterclaim) (dc5): PO YUEN KWAN SHIRLEY; 6th Defendant (counterclaim): LEUNG KWAN POK KEN; 7th Defendant (counterclaim): W.S. REALTY COMPANY LIMITED; 8th Defendant (counterclaim): TO SHUI KI; 9th Defendant (counterclaim): WU CHUN WAI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 March 2020
Case Number
HCA2613/2006
Procedural Posture
Civil Action (original Action and Counterclaim) / Interlocutory Application for Stay of Execution Pending Appeal
Outcome
Partial stay granted. Stay of execution of orders for demolition and of actual possession pending final determination of D2's appeal or further order. Stay of other orders (assessment of mesne profits and costs) refused. Costs of the Stay Summons to be in the cause of D2's appeal (order nisi).
Legal Topics
Stay of Execution, Vacant Possession, Demolition, Small House Policy, Mesne Profits, Preservation of Status Quo
Source Language
EN
Civil Procedure Property Law Land Law Appeal Costs Stay of Execution Vacant Possession Demolition +3 more

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Parties

YIM TIN FOOK

1st Plaintiff (original Action); 1st Defendant (counterclaim)

YIM TIN YAU

2nd Plaintiff (original Action); 2nd Defendant (counterclaim)

YU CHOR LAI

1st Defendant (original Action)

KONG WAI HUNG

1st Defendant (original Action)

SOU KA LUN

1st Defendant (original Action)

WANG CHEUNG INDUSTRIAL CHEMICALS CO

Trading Name of 1st Defendant

TO CHEONG LAM (deceased) represented by TO SZE ON

2nd Defendant (original Action); Plaintiff (counterclaim) Representing Estate

CHAN HI

3rd Defendant (counterclaim)

YEUNG HON SANG

4th Defendant (counterclaim)

CHAN WAI KIN

5th Defendant (counterclaim)

PO YUEN KWAN SHIRLEY

5th Defendant (counterclaim) (dc5)

LEUNG KWAN POK KEN

6th Defendant (counterclaim)

W.S. REALTY COMPANY LIMITED

7th Defendant (counterclaim)

TO SHUI KI

8th Defendant (counterclaim)

WU CHUN WAI

9th Defendant (counterclaim)

Procedural Posture

Civil Action (original Action and Counterclaim) / Interlocutory Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether D2 established an arguable appeal sufficient to warrant a stay of execution pending appeal
  2. 2 Whether execution of demolition and possession orders would cause irreparable or complex prejudice making appeal nugatory
  3. 3 Whether to stay ancillary orders including assessment of mesne profits and costs

Ratio Decidendi

The court found D2 had demonstrated an arguable appeal and sufficient risk of complex, difficult or irreversible prejudice to the compound and structures to justify a stay of execution of the demolition and actual possession orders pending final determination of the appeal, but D2 failed to show good reason to stay other orders (assessment of mesne profits and costs), which were refused.

Court Disposition

Partial stay granted. Stay of execution of orders for demolition and of actual possession pending final determination of D2's appeal or further order. Stay of other orders (assessment of mesne profits and costs) refused. Costs of the Stay Summons to be in the cause of D2's appeal (order nisi).

Orders

  • Stay of execution of the orders for demolition referred to at paragraph 24(2)(a) of the Decision on Relief and Costs pending final determination of D2's appeal or further order
  • Stay of execution of the order for actual possession referred to at paragraph 24(2)(a) of the Decision on Relief and Costs pending final determination of D2's appeal or further order