XCHRX WEST COAST INTERNATIONAL (PARKING) LTD. v. SECRETARY FOR JUSTICE

CACV 998/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 998 OF 2000

(ON APPEAL FROM HCA NO. 13458 OF 1999)

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J U D G M E N T

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1. On 1 September 2000, Master Jones made an order for possession against the Plaintiff in favour of the Government as landlord of land in Tin Shui Wai. The Plaintiff's appeal was dismissed on 23 November 2000. The Plaintiff is now appealing to the Court of Appeal. Its appeal is due to be heard on 10 April 2001. It now applies for a stay of the order for possession until the appeal has been determined.

2. The Government opposes the application for a stay. It points out that, even on the Plaintiff's case as to what the Plaintiff is entitled to under its tenancy with the Government, the Plaintiff has to give up possession of the land on 4 July. The Government is not prepared to extend the term of the tenancy beyond that date because of its plans to redevelop the site. Indeed, it claims that the Plaintiff's continued occupation of the land has already prevented it from putting the works for the redevelopment of the site out to tender, since the tendering process cannot begin until possession of the land has been obtained. Thus, the longer the Plaintiff remains in possession of the land, the longer it is before the tendering process can be completed and the redevelopment can get under way.

3. The Plaintiff's case is that if the order for possession is enforced before the appeal is heard, and if the appeal is allowed, the appeal will be rendered nugatory, and damages will not be an adequate remedy to compensate it for its loss of the use of the land. I cannot accept this argument. The land has been used as a carpark. I accept that once the redevelopment of the land begins, the Plaintiff can no longer use the land as a carpark. But I do not see why the loss of revenue which the Plaintiff would suffer cannot be met by an award of damages. I therefore see no reason why the Government should be deprived of the opportunity of putting the redevelopment works out to tender now. If the Plaintiff succeeds in its appeal, its loss of revenue is capable of being compensated for.

4. I therefore dismiss this application for a stay of the order for possession. However, I wish to add this. At present the Government has not obtained an appointment from the bailiff to recover possession. It could take some time for such an appointment to be obtained. If the appointment is not obtained before the appeal is heard and determined, the fact that a stay of the order for possession has not been made will not cause the Plaintiff any harm. On the other hand, if the appointment can be obtained soon, there is no reason why the order for possession should not be enforced now. But if, say, the earliest appointment for the execution of the order for possession is only a few days before the appeal is due to be heard, it may be that the Government should take the view that the appeal should take its course before the order for possession is enforced. However, that is a matter entirely for the Government, and the only order which I have made today is that this application for a stay of the order for possession should be dismissed.