CHAN YU CHAU v. FONG ON CONSTRUCTION & ENGINEERING CO. LTD.

HCPI753/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 753 OF 2000

____________

____________

_____________

R U L I N G

____________

1. The 1st Defendant applies for a stay of the judgment for the judgment sum until the determination of the appeal in this matter and/or further order of the Court.

2. The question of whether or not to grant a stay is entirely a matter for the discretion of the Court.

3. Having heard the arguments of counsel, I am not satisfied that this is an appropriate case for a stay to be granted.

4. While I do not go so far as to accept Mr Cheung's submissions that the appeal is not bona fide, the grounds as at present formulated are, to say the least, "thin".

5. Moreover even if the 1st Defendant was successful in the appeal, he is not left without further recourse even if the 2nd Defendant is insolvent. He could seek recovery of what he has paid from the Plaintiff but, even if not successful in this regard, he would receive protection at least as to the majority of his costs by reason of the fact that the Plaintiff is legally aided.

6. In so far as damages are concerned, the effect of the 1st Defendant being successful in the appeal would be to render the 2nd Defendant liable for the whole of the judgment sum. If the 1st Defendant has discharged the whole or part of that sum, he has a strong argument under legislation as now amended from recovering from the Intervenor any sum he has paid to discharge that liability.

7. The 1st Defendant thus failed to show that failure to grant the stay would result in this appeal if successful being nugatory.

8. I dismiss the application. I order that the 1st Defendant pay the Plaintiff's costs of this application. Notwithstanding the fact that the summons was addressed to all parties, I do not consider it would be just to make any order for costs in favour of the Intervenor.

Representation:

Mr Simon Cheung of Messrs Simon Chueng & Co. (assigned by DLA), for the Plaintiff

Mr George Chu, instructed by Messrs P H Chin & Co., for the 1st Defendant

Ms Hilda Wong of Messrs P C Woo & Co. for the Intervenor