Chen Mei-Huan v Victory Success Holdings Ltd

CourtEastern Caribbean Supreme Court
Docket NumberCLAIM NO. BVIHC (COM) 44 of 2019
JudgeJack, J
Judgment Date12 Feb 2021
JurisdictionCaribbean States
Neutral Citation[2021] ECSC J0212-2
[2021] ECSC J0212-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(COMMERCIAL DIVISION)

CLAIM NO. BVIHC (COM) 44 of 2019

Between:
Chen Mei-Huan
Claimant and Respondent
and
(1) Victory Success Holdings Ltd
Applicant
(2) Alan Zhan
(3) Peckson Ltd
(4) Macau Hotel Developers Ltd
(5) Macau Tourism and Amusement Co Ltd
Defendants
Appearances:

Determined on paper with written submissions from Mr. John McDonnell QC and Mrs. Dancia Penn OBE QC

1

Jack, J [Ag.]: On 17 th January 2021 the claimant (“Madame Chen”) applied for a stay of the judgment which I handed down as long ago as 30 th November 2020. It followed my refusal to consider an oral application for a stay at the hearing where I determined consequential matters on 14 th January 2021.

2

Madame Chen is concerned that Victory Success might sell the hotel to a purchaser for value without notice. Such a sale would, she submits, render her appeal nugatory. Despite the length of time since I handed down my judgment no such risk has eventuated. No evidence has been adduced about Macau conveyancing practice. Thus, it is unclear to me that there is no means by which Madame Chen's interest in the hotel can be protected in the event that her appeal succeeds. Normally one would expect it to be possible to place a restriction or caveat on the title. At any rate it is for Madame Chen to establish that she would be otherwise unprotected.

3

Madame Chen is also concerned that Victory Success might carry out works of demolition which would damage the value of the hotel. Victory Success is the subject of an injunction in the Macau courts. (In proposed corrections to this judgment, Madame Chen's counsel suggest that this is inaccurate in that there is in fact no injunction. There has, however, been some procedure before the Macau courts to prevent their taking legal possession of the hotel.) Although Victory Success did start some works of demolition earlier in the proceedings, none have since occurred.

4

In para [97] I cited the principles for a stay as follows:

“As regards a longer stay, the principles on which a stay of execution should be granted were stated by the Court of Appeal in C-Mobile Services Limited v Huawei Technologies Co Ltd 1 to comprise five principles:

“(i) The court must take into account all of the circumstances of the case.

(ii) A stay is the exception rather than the general rule.

(iii) A party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted.

(iv) In exercising its discretion, the court applies, what is in effect, a balance of harm test in which the likely prejudice to the successful party must be carefully considered.

(v) The court should take into account the prospects of the appeal succeeding but only where strong grounds of appeal or a strong likelihood the appeal will succeed is shown (which will usually enable a stay to be granted).

These elements are self-explanatory and apply in virtually all applications in varying degrees. The Court carries out a balancing exercise in considering the elements and no one element is decisive. The degree of importance attached to each element will vary according to the facts of each case.”

5

In the subsequent paragraphs of that judgment, I discuss the different considerations and indicated an adverse view to the granting of a stay. Having now read the submissions on appeal, that remains my view. As to (i), Madame Chen lost comprehensively before me. She will have to overturn a large number of points if her appeal is to succeed. As to (iii), the appeal has not yet been rendered nugatory, despite the passage of time since the end of November. The appeal is to be heard in, now, one and a half weeks' time. There is no cogent evidence of...

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