KENYON LTD v. WONG KWOK FAI

DCDT1010/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DISTRAINT NO. 1014 OF 2004

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R U L I N G

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1. This is a bailiff's interpleader.

2. The background can be stated shortly.

3. The plaintiff is the landlord of premises that were let to the defendant for use as a bar/restaurant. Rent fell into arrears to the tune of over $170,000 and the plaintiff applied and obtained a distraint warrant. The bailiff has gone in and seized everything that is on the premises, largely made up of the sort of equipment one might expect to find in premises such as these - tables, chairs, television sets, computers, refrigerator, kitchen utensils, wine, other beverages, things of that sort.

4. The claimant, Mr Wong Kwok-fai, has now come along and he says, "Wait a minute, this all belongs to me, or most of it belongs to me", and he has been able to identify what he says belongs to him, and that has very helpfully been marked by the bailiff with a felt tip pen so I can see precisely what is in dispute.

5. The matter first came before Her Honour Judge H C Wong on 22 March, when the claimant indicated his position to her, and in view of the fact that this matter clearly had to be heard on a contested basis, she adjourned the matter to today and ordered the parties to file evidence in support of their respective cases.

6. This morning, Mr Wong, who has filed two very short statements in support of his case, has come along and indicated that he does not propose pursuing the matter any further. And so really the question before me concerns the issue of the costs - that is not only the solicitor's costs but also the security guard's costs, which to today I am told amount to $17,000. Mr Fung, who is the solicitor for the plaintiff, has indicated, doing his best, that legal fees would not exceed $10,000.

7. This really is a very unsatisfactory situation. I am told by the bailiff that the value of everything seized comes to a little under $29,000, so that is well short of the $174,000 arrears of rent. Of that $29,000, $20,000 is the value that he would place on the goods that the claimant lays claim to, so one can see therefore that so far as the plaintiff is concerned he is certainly not going to get anything like the arrears of his rent. So far as the claimant is concerned, he has now indicated he has abandoned the claim, I having indicated to him the considerations which a court would have regard to in a matter of this sort. He is concerned, and naturally concerned, about having to pay costs, this adding insult to injury, where he says he has now also lost the goods that he lent to the tenant, the defendant.

8. Well, it seems to me that the only just order, I am afraid to say, is that the claimant is going to have to pay the plaintiff's costs, and these will include the legal costs as well as the security guard's fees. This is a risk that a claimant of this sort will always run.

9. This has been a perfectly lawful distraint by the bailiff who has seized everything in the tenant's apparent possession, and it seems to me that even if the claimant had made out a case - he has got no documents to back up his claim that he is the owner - but even if he had made out his case that he was the owner, that would not be the end of the matter. It is, of course, a consideration that I would have to have regard to, and a weighty consideration, but it is only one of a number of considerations that a court considering a matter of this sort would be required to take into account.

10. The landlord here is completely innocent in all of this. He has been held up because the claimant has appeared and laid claim to these items before Her Honour Judge Wong, and so we are having to have the hearing today, but now he has decided to forego his claim and I am afraid he does so with costs to the plaintiff, to include the security guard's costs.