|
DCMP 3093/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 3093 OF 2011
--------------------
| |
IN THE MATTER OF Order 113 of the rules of the District Court |
| |
and |
| |
IN THE MATTER OF No. 3A Yuet Lun Street, Lai Chi Kok, Kowloon |
-------------------
| BETWEEN |
LAW SIU LEUNG FORMERLY KNOWN AS LAW IP PO, the administrator of the estate of LAW HAR SIO-YING, deceased |
PLAINTIFF |
|
and |
|
|
THE OCCUPIERS (Defendants whose names are unknown to the Plaintiff) |
1st Defendant |
|
CHAN CHI WAH |
2nd Defendant |
-------------------
| Coram : Deputy District Judge Grace Chan in Chambers (open to public) |
| Dates of hearing : 13 June 2012 |
| Date of Reasons for Decision : 13 June 2012 |
REASONS FOR DECISION
Introduction
1. On 15 May 2012, I handed down my reasons for decision to grant summary possession of the land known as No. 3A Yuet Lun Street, Lai Chi Kok, Kowloon to the Plaintiff and dismiss the 2nd Defendant’s application to transfer this case to the Court of First Instance to be consolidated with HCA 1395/2011, on the ground that the 2nd Defendant failed to raise a bona fide defence and/or triable issues that should be determined in a proper trial.
2. By way of his summons filed on 28 May 2012, the 2nd Defendant now applies for (i) leave to appeal against my decision and for (ii) stay of execution of those orders given in my decision.
3. The 1st Defendant, being unknown to the Plaintiff, did not feature in all previous proceedings of this action.
4. The background leading to this action and my reasons for ordering summary possession of the Property be granted to the Plaintiff have been set out in my earlier reasons for decision, and I do not propose to repeat them at length here. For convenience, I would adopt herein the abbreviations used in the previous reasons for decision.
5. However, it may be helpful to note by way of background that the Plaintiff and the 2nd Defendant had signed various commercial agreements between them, the first of which was the JV Agreement (which was subsequently varied in 2003 and 2005 respectively). The 2nd Defendant alleged that the Plaintiff had wrongly breached the JV Agreement (as varied) and thus accepted the wrongful repudiation of the same by the Plaintiff. He then vacated the Property in June 2011, stopped paying rent under the Government Tenancy since 13 July 2011 and commenced the HC Action to sue the Plaintiff for breach of the JV Agreement in September 2011. Among other things that are prayed for in the HC Action, the 2nd Defendant sought to be compensated for the loss of use of the Property up to September 2015.
Applicable Legal Principle
6. Section 63A of the District Court Ordinance provides that leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success. The Court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal.
7. The 2nd Defendant needs to satisfy this court that the intended appeal has a realistic prospect of success, in the sense that he has at least an arguable case in the intended appeal: Ma Bik Yung v. Ko Chuen, HCMP 4303/1999 adopting and approving Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.
The Defendants’ Proposed Grounds of Appeal
8. In the draft notice of appeal exhibited in the 3rd affirmation of the 2nd Defendant filed for the purpose of this hearing, there are 9 provisional grounds of appeal.
9. But upon the further oral clarification by Mr Lau, Counsel for the 2nd Defendant, it becomes clear that all these provisional grounds essentially boil down to the general ground that I was wrong in not holding any triable issue in respect of the Estoppel Defence and more particularly the following:
(1)I failed to make any findings on the true nature of the JV Agreement which was in consistent with the promise which, the 2nd Defendant said, was made to him by the Plaintiff.
(2)I erred in law in concluding that in giving effect to the equitable estoppel, uncertainty would be introduced into the commercial relationship between the Plaintiff and the 2nd Defendant.
(3)I erred in law in finding that the promise relied on by the 2nd Defendant is otherwise than clear and unequivocal.
(4)I erred in law in finding that the Estoppel Defence is nothing more than the Contract Defence.
(5)I erred in law in finding that the Estoppel Defence is a sham defence just because the 2nd Defendant had “vacated” the Property for a short period of time.
(6)I erred in law in not finding that the reasonable notice given by the Plaintiff to resile from the promise should be at least September 2015.
Ground (1) : Failure to make any findings on the true nature of the JV Agreement which was in consistent with the promise which, the 2nd Defendant said, was made to him by the Plaintiff
10. By this, Mr Lau for the 2nd Defendant means that this court has failed to appropriate the true nature of the JV Agreement.
11. This is a repeat of what Mr Lau (also appearing for the 2nd Defendant in the hearing proper) had submitted to me. I have set out and thus considered his submission in arriving at the ruling of my decision (see para 21). I add that I fail to see the need to make a finding the alleged true nature of the JV Agreement in this case because I was not supposed to embark on a mini-trial on the affidavit evidence.
12. Further, even if such a finding was made, it would not have any direct bearing on the Estoppel Defence, for such a finding would not shed any direct light on the requisite elements of promise, reliance and detriment.
Ground (2): Error in law in concluding that in giving effect to the equitable estoppel, uncertainty would be introduced into the commercial relationship between the Plaintiff and the Defendant
13. I think the 2nd Defendant has mis-read para 35 of my decision. In that para, I only meant to set out the background tone and accompanying general principle, namely the dealing between the Plaintiff and the 2nd Defendant was strictly commercial. And the court would be very slow to introduce uncertainty by over-applying the use of equitable remedy in a commercial context.
14. I have certainly not ruled that the Estoppel Defence was not real and bona fide because of the commercial nature of relationship between the Plaintiff and the 2nd Defendant.
15. Mr Lau elaborates on this ground by saying that by allowing the 2nd Defendant to raise the Estoppel Defence, it would not upset the commercial relationship between the Plaintiff and the 2nd Defendant, but would give effect to their intention.
16. I have this to say. Whatever might be the intention of the parties at the time when the series of commercial agreements were made, it has become, if I may use the word “obsolete”, by now, for in or about June 2011, the 2nd Defendant has terminated these commercial agreements and vacated the Property, albeit for a rather short period of time.
Ground (3) : Error in law in finding that the promise relied on by the 2nd Defendant is otherwise than clear and unequivocal
17. Mr Lau submits that I have failed to consider that the promise made by the Plaintiff to help the 2nd Defendant to obtain the Government Tenancy is in substance a promise to forgo the Plaintiff’s right as the tenant vis-à-vis the 2nd Defendant. He relies on para 13 of the 1st affirmation of the 2nd Defendant in which the 2nd Defendant deposed that on 20 July 1992, he paid $13,500 to the Plaintiff and another $30,000 in advance to cover the management fees from June 1992 to March 1993 to the Plaintiff “in return for the Plaintiff’s promise to give up the tenancy and agreed to apply to the government for the change of the tenant to [him]”.
18. Whether the “promise to help” in this case constitutes a clear and unequivocal promise/assurance is already discussed in para 36 of my earlier decision.
19. In my view, the said para 13 quoted by Mr Lau is a non-pointer to show that the Plaintiff had promised to give up his right as the tenant under the Government Tenancy in an estoppel context, for the evidence on the other essential elements of “reliance” and “detriment” in an estoppel claim (as well as their particulars) are lacking in that paragraph.
20. It also needs to be pointed out that such promise, if it really ever existed, was not contained in the JV Agreement made in the same year of 1992.
21. I see no reasonable prospect of success in the intended appeal of this ground.
Ground (4) : Error in law in finding that the Estoppel Defence is nothing more than the Contract Defence
22. Mr Lau does not directly expand much on this ground.
23. I would simply repeat what I have said in paras 37 and 38 of my earlier reasons for decision which explain why I conclude that the Estoppel Defence is a sham defence.
Ground (5) : Error in law in finding that the Estoppel Defence is a sham defence just because the 2nd Defendant had “vacated” the Property for a short period of time
24. It needs to point out that I did not find the Estoppel Defence as a sham “just because” the 2nd Defendant had vacated the Property. It is quite clear that paras 37 and 38 of my earlier decision should be read together.
25. Further, in finding the Estoppel Defence is a sham, I did not only rely on the 2nd Defendant’s having been vacated the Property for a short period of time. I also relied on other examples showing that he had acted in such a way which was inconsistent with his plea of an equitable right in the Property (see para 38 of my earlier decision).
26. Further, I have already said in para 40 of my earlier decision that the duration of departing with the occupation of the Property by the 2nd Defendant was not relevant in my consideration; what mattered was whether such departing with the occupation of the Property amounts to an unequivocal act of the same.
Ground (6) : Error in law in not finding that the reasonable notice given by the Plaintiff to resile from the promise should be at least September 2015
27. It is the 2nd Defendant’s case that he had pre-paid $36,000 to the Plaintiff, being 10 years of monthly sum of $300 each up to September 2015.
28. It is important to note that such pre-payments were one of the written terms and conditions of the 2005 Agreement, but the same of which was terminated by the 2nd Defendant himself in/about June 2011 upon alleged acceptance of the wrongful repudiation by the Plaintiff. Further, the 2nd Defendant has claimed damages for loss of use of the Property in the HC Action. As such, I cannot see how the 2nd Defendant can successfully argue that the Plaintiff could not resile from the promise (if there really was one) until at least September 2005.
No reasonable prospect of success
29. Due to the matters set out above, I am not satisfied that 2nd Defendant’s proposed grounds of appeal show any realistic prospect of success. His leave to appeal must be refused.
Stay of Execution
30. Mr Lau says that it is the 2nd Defendant’s application to apply for stay of execution of (i) the possession order; and (ii) the costs order given by me in my earlier decision which was already made absolute by now.
31. On the stay of execution of the possession order, Mr Lau helpfully refers me to the judgment given by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 which set out all relevant principles governing the applications for stay of execution of judgment (paras 7 to 9 of that judgment refers).
32. But since I have refused to give leave to the 2nd Defendant appeal, I cannot see why I should grant a stay of execution of the possession order.
33. But just for completeness, I would say that had I given leave to the 2nd Defendant to appeal to the Court of Appeal, a stay of execution would be justified in the circumstances, for the simple reason that the any “absence of stay would certainly render the appeal nugatory”.
34. On stay of execution of the costs order, Mr Lau asks me to exercise my discretionary power in favour of the 2nd Defendant due to his cross claim in the pending HC Action. Mr Lau says that the damages, the loans and the costs therein would overtop any costs that would be awarded to the Plaintiff in this action.
35. With respect to Mr Lau, I cannot see any justification to prevent the Plaintiff to enjoy the fruits of the ruling given by me in my earlier decision, especially when it seems to be me the pending HC Action still has a long way to go and is nowhere near the stage of trial.
Conclusion
36. To conclude, I will, despite Mr Lau’s able argument, dismiss the 2nd Defendant’s summons filed herein on 28 May 2012.
37. I shall make a costs nisi to the effect that the Plaintiff do have the costs of this application to be taxed if not agreed. For avoidance of doubt, I certify the attendance of Counsel in this hearing.
38. If neither party applies to vary the costs order nisi within 14 days from today, the said costs order nisi will be made absolute.
| |
Grace Chan
Deputy District Judge |
Mr Kelvin Liu instructed by Messrs Ong & Chung for the Plaintiff
The 1st Defendant was not represented and did not appear
Mr Raymond Lau instructed by Messrs K Y Leung & Carina Chen for the 2nd Defendant
|