LAU TAK FAI t/a CURRY HOUSE v. GRAND SEASONS (CENTRAL) FOOD AND BEVERAGES CATERERS CO. LTD.

IN THE COURT OF APPEAL

1993, No. 174
(Civil)

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. This is an appeal against the order of Deputy Judge Yeung dated 20th October 1993 by which he ordered that "without prejudice to the respective parties' claim, the defendant do deliver vacant possession of Shop B06 of Shop Nos.330 and 406 of Leung King Shopping Centre, Tuen Mun, New Territories to the Plaintiff within 14 days from today; the Defendant be given unconditional leave to defend in respect of the remaining claim of the Plaintiff; costs of this application be the Plaintiff's costs in the cause."

2. The matter arose in the following way. The defendant took certain premises comprising a food stall in the shopping centre mentioned from the plaintiff, whether by way of licence or agreement is in dispute. Sometime after that, on 10th March 1993, the plaintiff's solicitors wrote terminating the arrangement. Later, between 17th and 24th April the plaintiff re-entered the premises.

3. The next matter which may be referred to is the exchange of correspondence, both sides alleging and disputing breaches of the agreement or licence. Following the plaintiff's re-entry of the premises, the plaintiff's solicitors wrote to the defendant asking him to collect his belongings and property from the premises. One such request was made on 24th May. On the following day, the defendant's solicitors apparently attempted to inspect the premises but were not able to do so. They were prevented by staff of the management office. On 30th July, the plaintiff's filed a writ of summons. By the statement of claim endorsed they founded their claim upon a licence which they said was breached. They claimed various sums of money as fees and interest, and a declaration that the licence had been terminated. This was subsequently re-amended on 19th September and an order sought that the defendant within three days of service of an order upon him remove all his belongings and properties in the premises. Later still, on 2nd October, vacant possession of the subject property was also sought.

4. On 4th October the plaintiff's took out an order 14 summons for summary judgment. The comprehensive nature of that summons is of some significance. It sought judgment for "the various orders and reliefs as claimed in the re-amended statement of claim", in the alternative, an order for interim payment. The Deputy Judge made the order we have already referred to.

5. Mr Chain for the plaintiff relies on two simple points. First, he says, the plaintiff was plainly in possession of the premises at the time the order 14 application was made. Therefore, he says, the order for vacant possession was misconceived. Mr Erik Shum, for the defendant, in response to that, says that although the plaintiff might have been in physical possession, it was not in vacant possession because of the belongings of the defendant which remained in the shop premises. He relies upon Cumberland Consolidated Holdings Limited v Ireland [1946]1 KB 264. But clearly that authority does not support him for in that case there was such a quantity of rubbish left on the premises as to deny the plaintiff's use of the premises. There is no evidence of that here. Moreover, in that case the plaintiff's action was not for vacant possession, but was for damages for breach of condition requiring delivery of vacant possession.

6. Mr Chain also addressed the point raised by Mr Shum in his skeleton submission, that the order made by Deputy Judge Yeung was an order by consent. This arises from the judge's notes of the proceedings in which there appears an attribution to the defendant's counsel of these words: "Parties agreed that judgment can be agreed in terms of prayer No. 3 of Statement of Claim." This was presumably a reference to prayer 3A for vacant possession and 3B for removal of the belongings. Also in the judge's notes there was the further attribution to the defendant's counsel of "Defendant consent to summary judgment Order 14 rule 7/6 refers". Finally, there is the substance of the first two paragraphs of his order headed "By consent". Mr Chain strenuously opposed the conclusion that the order was made by consent. As already indicated, the order did not on its face suggest it was made by consent. Mr Shum invited this Court nonetheless to go behind the order and to regard it as an order made by consent because of the passages in the notes to which we have referred.

7. We do not think that that is open to this Court. Had the plaintiff wished to take that course, the appropriate action would have perhaps been to invite the Deputy Judge below to correct the order under the slip rule. However that may be, it is the formal order of the court that is appealed and that we have to address.

8. Reverting then to Mr Chain's first ground, clearly, the plaintiff being in possession of the premises, the appropriate relief and order would have been for removal of the defendant's belongings and property and to that extent the order for vacant possession cannot be supported, either upon the basis of consent or to procure removal of the defendant's belongings in the shop. Moreover, by its very nature, an order for possession even if qualified by "vacant" would, to say the least, tend to complicate the conflicting claims to fees or rent and the like. We are satisfied therefore that the appeal must be allowed.

9. Accordingly, we allow the appeal and set aside the order to the extent necessary, i.e. in respect of paragraph 1 of the order.