Professional Documents
Culture Documents
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HCCL 2/2011
C [2018] HKCFI 34 C
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LIM LEUNG YAU, EDWIN 6th Defendant
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th
LIU HIU HONG, LINDA 7 Defendant
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B __________________________ B
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Before: The Hon. Mr Justice Bharwaney in Chambers (Open to public)
D Date of Hearing: 6 December 2017 D
to say about that later. I dismissed the stay application on 6 December 2017
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and indicated that I would hand down my reasons for doing so at a later
M date. These are my reasons. M
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2. §7 of my sealed judgment dated 13 April 2017 stated:
O “7. With respect to the further conduct of the proceedings, it is O
directed that:-
P (i) Unless the parties or any of them apply within 28 days P
from the date of this Judgment to vary this direction, the
solicitors for the 3rd and 4th Plaintiffs and the solicitors for the
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the 2nd and 4th Defendants jointly appoint and instruct Satyajit
Das and Pawan Malik to prepare an expert report within 42 days
R setting out the value of the assets in the 4th Plaintiff’s portfolio R
as at the date of the issue of the Writ herein on 28 February 2011;
and, secondly, setting out their opinion on what the value might
S have been on 28 February 2011 if 4th Plaintiff had not acquired S
US$83m worth of AUD from 24 July to 5 August 2008 and had
T not purchased the 3 decumulators on 15 August 2008, 27 August
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2008 and 29 August 2008 respectively but had carried out the
other transactions listed in the 2nd Schedule of the Witness
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22 June 2017 for the parties to vary the expert direction on quantum I had
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given on 13 April 2017 and I also directed that if there was no application
J by 22 June 2017 to vary the expert direction on quantum, the experts were J
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to provide their joint report on or before 7 July 2017. I granted further
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liberty to apply.
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6 July 2017, the 2nd and 4th defendants applied by summons for a further
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order that the time for the performance of the expert directions set out in
R §7 of my sealed judgment, as varied by my direction on 19 May 2017, be R
extended until the disposal of the stay summons. I also dealt with this
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further summons on 6 December 2017. Surprisingly, the 3rd and
T 4th plaintiffs did not apply by cross summons, either on or about T
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B 21 June 2017 or on or about 6 July 2017, for an order that unless the expert B
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7. In giving directions on 13 April 2017 and 19 May 2017 for
H the provision of the experts’ joint report on or before 7 July 2017, I had H
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there are arguable grounds of appeal. I do not consider that there is a strong
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likelihood of the appeal succeeding. Accordingly, the applicant must
M provide additional reasons why a stay is justified. M
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11. This is not an application for stay against a monetary
O judgment. This is not a case where the appeal would be rendered nugatory
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because of an appreciable risk that the respondent would not be able to
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repay the monetary judgment. This is a case where the cost of the further
Q proceedings may be wasted if the appeal is successful. Chow J faced a Q
similar application in Tang Ying Loi v. Tang Ying Ip alias Tang Ying Yip
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& Ors. HCA 2487/2009, 14 April 2015. He dismissed the application for
S the reasons expressed in §§5 to 12 of his decision as follows: S
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B proceed on the basis that the 1st and 3rd defendants’ appeal is B
reasonably arguable. I am unable to accept, however, that they
have a strong appeal or a strong likelihood of success in the
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appeal.
6. The question is whether there is any “good reason” to order
D a stay of execution pending appeal. D
7. The Judgment does not require the 1st and 3rd defendants to
E pay any money or transfer any property to the plaintiff or to the E
Estate of Tang Pui King, deceased (“the Estate”), at this stage.
It directs an inquiry to be carried out to ascertain the profits and
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compensation which the 1st defendant is liable to account or pay
to the Estate. Before such inquiry can be carried out, some
G further discovery will have to be made, and expert evidence on G
valuation of the property known as Nos 129-131 Castle Peak
Road, Yuen Long, New Territories, Hong Kong (“the Property”)
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and evidence regarding the rentals and other income (if any)
derived from holding the Property as well as expenses incurred
I in relation to the Property (including costs of repair and I
maintenance of the Property) will have to be prepared. However,
there is no question of the 1st and 3rd defendants’ appeal being
J rendered nugatory if a stay is not granted. J
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B mentioned above regarding the fixing of the date for the hearing B
of the inquiry.
C 11. Mr Mok also relies on the fact that the plaintiff has put in C
a respondent’s notice by way of cross appeal which, if successful,
would have a substantial impact upon the scope of the inquiry.
D Again, I am content to proceed on the basis that the plaintiff’s D
cross appeal is reasonably arguable, but I do not consider that,
E for the purpose of considering whether there ought to be a stay
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pending appeal, it has any greater significance than the 1st and
3rd defendants’ appeal.
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12. I have been reminded by Mr Chain that the plaintiff is now
87 years old, and was only able to pursue the present action as a
G result of information coming to light after previous protracted G
litigations commenced by Ying Lam and the plaintiff to compel
the 1st defendant to provide an account concerning the
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administration of the Estate and the Loan respectively. Any
further delay in the conduct of the inquiry would, in my view, be
I prejudicial to the plaintiff in view of his advanced age.” I
compensation may be wasted by the 2nd and 4th defendants should they
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succeed in their appeal, but the risk of wasted costs is inherent in our
P system of litigation and cannot by itself justify a stay of execution pending P
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appeal. Indeed, those wasted costs may be recoverable from the 3rd and
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th nd th
4 plaintiffs should the 2 and 4 defendants succeed in their appeal.
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has not been suggested that the participation of the other defendants in the
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quantum exercise will alter the basis of assessing equitable compensation
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or the expert opinion evidence to be adduced in the assessment. I am not
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satisfied that the “so-called unfairness” is sufficient reason to order a stay.
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and indicated that I would hand down my reasons later and then I made the
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following directions and orders:
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(a) the parties to jointly apply to fix a directions’ hearing for the
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B (b) The hearing of the 3rd and 4th plaintiffs’ application for interim B
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(d) Costs of the summons dated 21 June 2017 and 6 July 2017
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and of the hearing on 6 December 2017 be reserved.
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16. On 2 November 2017, the Court of Appeal gave notice to the
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parties that the appeal and cross appeal from my judgment would be heard
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on 8 May 2018 with 4 days reserved. I only became aware of this shortly
17. The 2nd and 4th defendants’ summons for the stay was fixed
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originally to be heard on 22 August 2017. When I learned of that, I
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intimated to my clerk that I wanted to refix the application to be heard
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earlier. I was anxious to get on with it and to refix the hearing to a date in
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July, but, apparently, counsel for the 2nd and 4th defendants were not
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B available in July, and, to make matters worse, the 3rd and 4th plaintiffs’ B
counsel were also not available between 1 and 29 August. As the hearing
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date was to be fixed in consultation with counsel’s diaries, the hearing date
D on 22 August was no longer appropriate. After a substantial exchange of D
exercise before the Court of Appeal heard the appeal was sensible because
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if an appeal was also going to be lodged against my assessment on quantum,
J the Court of Appeal could deal with it at the same time as the hearing of J
the original appeal. However, given the further steps that needed to be
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taken, as set out in §15(a) above, and given the state of the court’s diary, it
L was not possible, between 6 December 2017 and 8 May 2018, to complete L
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19. For these reasons, I exercised my discretion to make the
P directions set out in §15 above. Given the current state of affairs, the road P
map provided by these directions is a pragmatic solution which enables the
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3rd and 4th plaintiffs to refix the assessment of quantum expeditiously in the
R event that the 2nd and 4th defendants’ appeal is dismissed. R
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20. Parties ought not to be granted the indulgence of fixing
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hearing dates in consultation with counsels’ diaries in cases which ought
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to be dealt with expeditiously.
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(Mohan Bharwaney)
D Judge of the Court of First Instance D
High Court
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Mr Barrie Barlow SC and Mr Chan Pat Lung, instructed by Reed Smith
Richards Butler, for the 3rd and 4th plaintiffs
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Mr Ashley S Burns SC, Mr Abraham L S Chan SC and Ms Bonnie
Y K Cheng, instructed by Mayer Brown JSM, for the 2nd and
H 4th defendants H
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