WANG SIAU (OR HSIAO) YU v. WU CHO MEI (or MAY) t/a MUI FAR CHUNG RESTAURANT AND ANOTHER

1993, No.121
(Civil)

IN THE COURT OF APPEAL

(On Appeal from H.C. Action No.A7830 of 1992)

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J U D G M E N T

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Godfrey, J.A. :

1. This is an appeal from an order of Mayo, J. made on 5th July 1993 in the plaintiff's action for possession of certain premises used and occupied by the 1st defendant and partners of his as a restaurant. The judge's order was made on the plaintiff's application for summary judgment under O.14 of the Rules of the Supreme Court. The judge refused the application and gave the 1st defendant leave to defend the action; but he regarded the defence advanced by the 1st defendant as shadowy and accordingly, granted the 1st defendant leave to defend only on condition of a payment into court of $750,000 being made within 14 days.

2. I do not, for my part, think it is necessary or even desirable to go into the facts of the case, which are the subject of considerable dispute between the parties. Suffice it to say that the plaintiff has not sought to appeal the judge's order.

3. What is before us is the 1st defendant's appeal. The 1st defendant says that $750,000 is a sum beyond his means to pay. If that is right, the condition would render nugatory the right he undoubtedly has to defend the action. It is clear that the court will not impose upon a defendant a condition with which it is satisfied he is unable to comply before giving him leave to defend; for that would be tantamount to refusing him leave to defend altogether see M V Yorke Motors (a firm) v. Edwards [1982]1 WLR 444.

4. Since the date of the judge's order the position has changed, for, on 29th January 1994, the 1st defendant filed an affidavit of means, the relevant parts of which I now extract:

" 1 ...... I was unable to comply with the condition that I and the 2nd Defendant should pay into court the sum of HK$750,000.00 within 14 days from the date of the Order.

3 I am married with 2 children ...... My wife ...... is a housewife. I receive HK$7,000 per month from the ......Restaurant ...... and $10,000 a month [as manager of another restaurant]"

That, I think, is the total amount of his earnings. He goes on:

"4 ...... It is simply impossible for me to raise HK$750,000 within 14 days or any longer period.

5 However, the partners of our restaurant have discussed about this matter. We realise that if we are unable to comply with the court order in question, the restaurant will have to be closed down very soon. In view of this, the partners have agreed, to put up HK$50,000 each. My brother, Wu Cho Ching, is willing to lend me HK$50,000 for this purpose. All that I manage to raise is, therefore, HK$200,000."

And the 1st defendant asks this court to vary the judge's order so as to provide for a payment into court of $200,000 instead of $750,000.

5. The plaintiff protests that this evidence is jejune and that more detail ought to have been given by the 1st defendant as to his financial position. However, the plaintiff has not himself put in evidence to challenge what the 1st defendant had said and has not sought an adjournment for that purpose. It is, I think, impossible for us to go behind the evidence, such as it is, that the best that the 1st defendant can do is to raise $200,000.

6. Having regard to the judge's finding that the defence is shadowy, this does seem to me to be a proper case for the imposition of a condition, but I accept the 1st defendant's submission that the figure of $200,000 should be substituted for the judge's figure of $750,000. I would allow this appeal to that extent accordingly.

Nazareth, J.A. :

7. I agree that from the affidavit of the 1st defendant to which my Lord has referred, it seems that the 1st defendant's statement that it is simply impossible for him to raise HK$750,000 is credible, and it must follow from that that if the judge's order stands, his case in the action will in effect be pre-determined. On the authority of the M V Yorke Motors case to which my Lord has referred, that would not be right; and, upon that basis, the appeal must be allowed.

Mortimer, J.A. :

8. I agree and have nothing to add.

Nazareth, J.A.:

9. The costs will be costs in the cause.