FAN YUXI v. LINBIAO TANG AND OTHERS

FAN YUXI v. LINBIAO TANG AND OTHERS

The 4th defendant failed to demonstrate sufficient grounds or a real prospect of success to justify a stay of execution; the plaintiff's undertaking to hold the judgment sum in the solicitor's client account pending appeal was fair, reasonable and adequate, so the court made the garnishee order absolute, varied the injunction to permit enforcement and dismissed the 4th defendant's summons with costs.

Citation
[2021] HKCFI 3598
Parties
Plaintiff (judgment Creditor): FAN YUXI; 1st Defendant: LINBIAO TANG; 2nd Defendant: HE WEI; 3rd Defendant: YANG LIFEN; 4th Defendant (judgment Debtor): WANG LI WEI; 5th Defendant: LIU BIN; 6th Defendant: DAI ZHIWEI; 7th Defendant: CHAN KIN YAN; 8th Defendant: CHEN XIANGPEI; 9th Defendant: QIANMING HUANG; 10th Defendant: JUNCAI WU; 11th Defendant: MA WUSUMENI; 12th Defendant: YANG JIANHUA; 13th Defendant: ZHOU BINGQIU; 14th Defendant: YU ZHANGPING; 15th Defendant: LIN SONGMAO; 16th Defendant (discontinued): UNION DUTY-FREE LIMITED; 17th Defendant: CHEN GUI YING; 18th Defendant: CHEN XIAOYING; 19th Defendant: XUE RIZHONG; 20th Defendant: XIANHUI TRADING CO., LIMITED; 21st Defendant: TWHW AUTO LIMITED; 22nd Defendant: AN XIAOTUAN; 23rd Defendant: SU MING; 24th Defendant (discontinued): LU WAN-JU; 25th Defendant (discontinued): LIN SHENG-HSIEN; 26th Defendant: XIONG LIWEN; 27th Defendant (discontinued): STARZ ENTERTAINMENT CO LTD; 28th Defendant: HK MANTIANXING TRADE LIMITED; 29th Defendant: TXY TRADE LIMITED; 30th Defendant: SONG JUENA; 31st Defendant: HU HAISONG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 November 2021
Case Number
HCA2032/2020
Procedural Posture
Enforcement (garnishee and Stay of Execution Application) / Chambers Hearing on Application for Stay of Execution and Variation of Injunction
Outcome
Garnishee order nisi made absolute; 4th defendant's summons dismissed; injunction varied; costs awarded to plaintiff
Legal Topics
Stay of Execution, Garnishee Order, Undertaking to Court, Variation of Injunction, Costs, Real Prospect Test
Source Language
EN
Civil Enforcement Garnishment Appeals Injunctions Civil Procedure Stay of Execution Garnishee Order Undertaking to Court +3 more

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Parties

FAN YUXI

Plaintiff (judgment Creditor)

LINBIAO TANG

1st Defendant

HE WEI

2nd Defendant

YANG LIFEN

3rd Defendant

WANG LI WEI

4th Defendant (judgment Debtor)

LIU BIN

5th Defendant

DAI ZHIWEI

6th Defendant

CHAN KIN YAN

7th Defendant

CHEN XIANGPEI

8th Defendant

QIANMING HUANG

9th Defendant

JUNCAI WU

10th Defendant

MA WUSUMENI

11th Defendant

YANG JIANHUA

12th Defendant

ZHOU BINGQIU

13th Defendant

YU ZHANGPING

14th Defendant

LIN SONGMAO

15th Defendant

UNION DUTY-FREE LIMITED

16th Defendant (discontinued)

CHEN GUI YING

17th Defendant

CHEN XIAOYING

18th Defendant

XUE RIZHONG

19th Defendant

XIANHUI TRADING CO., LIMITED

20th Defendant

TWHW AUTO LIMITED

21st Defendant

AN XIAOTUAN

22nd Defendant

SU MING

23rd Defendant

LU WAN-JU

24th Defendant (discontinued)

LIN SHENG-HSIEN

25th Defendant (discontinued)

XIONG LIWEN

26th Defendant

STARZ ENTERTAINMENT CO LTD

27th Defendant (discontinued)

HK MANTIANXING TRADE LIMITED

28th Defendant

TXY TRADE LIMITED

29th Defendant

SONG JUENA

30th Defendant

HU HAISONG

31st Defendant

Procedural Posture

Enforcement (garnishee and Stay of Execution Application) / Chambers Hearing on Application for Stay of Execution and Variation of Injunction

Legal Issues

  1. 1 Whether a stay of execution should be granted pending appeal
  2. 2 Whether the garnishee order nisi should be made absolute
  3. 3 Whether the 4th defendant demonstrated real prospects of success to set aside the judgment

Ratio Decidendi

The 4th defendant failed to demonstrate sufficient grounds or a real prospect of success to justify a stay of execution; the plaintiff's undertaking to hold the judgment sum in the solicitor's client account pending appeal was fair, reasonable and adequate, so the court made the garnishee order absolute, varied the injunction to permit enforcement and dismissed the 4th defendant's summons with costs.

Court Disposition

Garnishee order nisi made absolute; 4th defendant's summons dismissed; injunction varied; costs awarded to plaintiff

Orders

  • The garnishee order nisi is made absolute.
  • Upon the plaintiff's undertaking as set out in paragraph 5 of the plaintiff's counsel's skeleton submission, the injunction granted ex parte on 3 December 2020 and continued on 11 December 2020, 8 January 2021, 29 January 2021 and 7 September 2021 is varied to enable enforcement of the garnishee order absolute.