DCCJ 792/2024

[2024] HKDC 1432

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 792 OF 2024

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DECISION

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Introduction and Procedural Background

1. By Inter Partes Summons dated 16 August 2024, the Intervener (“IV”) seeks a stay of execution of the Garnishee Order Absolute (“GOA”) made by Master B Mak (“the Learned Master”) on 9 August 2024 until further order of the court.

2. After hearing an ex parte application of IV on 15 August 2024, Her Honour Judge Phillis Loh granted: (1) leave to IV to join in these proceedings for the purpose of appealing to a judge against the GOA; and (2) interim stay of execution of the GOA until the hearing before me today (“the Interim Stay”).

3. On 16 August 2024, IV filed a Notice of Appeal against the making of the GOA by the Learned Master to be heard by me on 3 October 2024.

4. On 22 August 2024, through my clerk, I indicated to the Plaintiff (“P”) and IV that I was minded to continue the Interim Stay up to 3 October 2024 and to vacate today’s hearing. If any party had any objection to this proposed course, submissions were to be lodged for consideration by me on paper.

5. By letter from P’s solicitors dated 26 August 2024, it was submitted as there exists no arguable appeal the Interim Stay should not be continued and the hearing before me today should not be vacated.

6. By Plaintiff’s Skeleton Submissions dated 26 August 2024 (“P’s Skeleton”), Mr Wong, counsel for P, indicated therein that P’s stance was that IV’s appeal is unarguable and the Interim Stay should be lifted.

7. Given the stance of P, the hearing proceeded before me today.

Applicable Principles and Analysis

8. The applicable principles for the exercise of the discretion to grant a stay of execution are not disputed.

9. As Ma J (as he then was) held in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84, in order to justify a stay of execution, one had to demonstrate that good reasons existed. Whilst the learned judge held that it would be wrong to set out exhaustively what would constitute good reasons, commonly, reference is made to factors such as whether the absence or existence of a stay would render an appeal nugatory and the merits of the appeal (see §§7-8). See also Hong Kong Civil Procedure 2024 , Vol 1, §59/13/1.

10. I do not think P has disputed that the absence of a stay would render the appeal nugatory.

11. Plainly, now that the GOA has been sealed and served on the Garnishee, if there is no stay of execution of the GOA, the sum of US$252,470.71 with interest and HK$7,130 fixed costs would be paid to P. The Garnishee had already informed IV by letter dated 23 July 2024 (“Garnishee’s Letter”)