Application to Stay Pending Appeal

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Applicable Legal Principles

The legal principles governing an application for stay of execution pending appeal are well settled.  They are as set out by Ma J (as he then was) in Star Play Development v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at paras 7 to 10.  See CMM v CSYR CACV 248/2012

MKKWH (aka MKGWH) v RKSH CACV 197/2012 – 30th January 2012 – Stay pending appeal allowed.

Cheung JA – ‘At this stage of the proceedings unless the wife can show that she has such a strong meritorious appeal that justice requires the judgment to be stayed, the applicable principle in granting a stay is that she has to show that she has an arguable appeal and the appeal will be rendered nugatory if the judgment is not stayed.’

MKKWH (aka MKGWH) v RKSH CACV 197/2012 – 27th February 2013 – Lam JA – The Appeal of Cheung JA’s judgment upheld on the substantive issue although partially allowed on the ‘fall-back’ position of offering some division of the assets pending appeal. ‘Whilst the splitting up and sale of some items might be inevitable, how the collection is to be split up and which items must be sold depend on the mechanism for achieving the fair distribution of the items between the wife and the husband.  By the appeal, the wife is trying to persuade the Court of Appeal to overturn Judge Carlson’s decision on the mechanism.  Thus, the conclusion of Cheung JA on the appeal without a stay being rendered nugatory cannot be faulted.’