BRIGHT SUCCESS PROPERTIES LTD v. DIAS, SANDRA MARY ELIZABETH

DCCJ4464/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4464 OF 2013

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DECISION

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1.  This is the hearing of the defendant’s summons filed on 13 June 2014. She is applying for leave to appeal against my decision on 9 June 2014.

Decision on 9 June 2014

2.  On 9 June 2014, I handed down my decision and ordered that the defendant’s appeal against Master D Ho’s decision given on 20 May 2014 be dismissed.

3.  As to costs, I granted a costs order nisi to be made absolute within 14 days that the defendant do pay the plaintiff the costs of and occasioned by the Notice of Appeal filed on 23 May 2014, to be taxed if not agreed.

4.  I also granted an interim stay of execution of the default judgment given on 3 January 2014 until 16 June 2014 so as to enable the plaintiff to move out of the premises in question.

Summons filed on 14 June 2014

5.  On 14 June 2014, the defendant took out a summons applying for stay of execution of the default judgment until 1 July 2014. 

6.  After hearing the plaintiff’s solicitor and the defendant on 16 June 2014, I ordered that:-

(a)   Time for service of the summons taken out by the defendant on 14 June 2014 be abridged.

(b)   There be a stay of execution of the default judgment given on 3 January 2014 until the hearing on 30 June 2014, 2:30 pm, ie today’s hearing, on condition that the defendant shall pay into court HK$20,000 as security on or before 23 June 2014.

(c)   There be an interim stay of execution of the default judgment given on 3 January 2014 until 23 June 2014.

(d)   The costs of this application be in the cause of the defendant’s application for leave to appeal.

7.  I so ordered because the defendant’s application for leave to appeal was going to be heard on 30 June 2014.  Her application might be successful and might be unsuccessful.  I was of the view that it would be fair if there be a stay of execution until the hearing on 30 June 2014.  But whether the defendant’s application was going to be successful or not, she should still pay for her occupation of the subject premises in the meantime.  She agreed that she had not paid anything after the payment into court on 31 March 2014.  That was why I granted the stay of execution on condition that she shall pay into court HK$20,000 as security on or before 23 June 2014.

Summons filed on 25 June 2014

8.  The defendant failed to pay into court the security of HK$20,000 by 23 June 2014 as ordered by me.  Instead, she took out a summons on 25 June 2014 asking for extension of time of 10 days for paying the security.

9.  After hearing the plaintiff’s solicitor and the defendant on 25 June 2014, I ordered that:-

(a)   Time for service of the summons taken out by the defendant on 25 June 2014 be abridged.

(b)   The summons taken out by the defendant on 25 June 2014 be dismissed.

(c)   The defendant do pay the plaintiff’s costs of and occasioned by the summons taken out on 25 June 2014 summarily assessed at HK$1,200, to be paid forthwith.

10.  I so ordered because I was of the view that an appeal does not operate as a stay of execution.  Indulgence was already granted to the defendant on 16 June 2014 when conditional stay of execution was ordered.  The defendant was also given time to satisfy the condition.  I saw no reason for acceding to the defendant’s request for further time.  The defendant’s plea of impecuniousness was not a sufficient reason.

Summons filed on 28 June 2014

11.  Before I hear the defendant’s application for leave of appeal, I need to deal with a summons taken out by the defendant on 28 June 2014.  In the summons, she is asking me to excuse myself from hearing this case.  As I understand it, her reasons are as follows:-

(a)   I had failed to take into account much of the relevant facts when reaching my decision on 9 June 2014.

(b)   I had shown bias when I ordered the defendant to pay the plaintiff’s costs in the sum of HK$1,200 on each occasion on 27 May 2014 and 25 June 2014.

(c)   I ordered her to pay into court a sum of HK$20,000 as condition for stay of execution on 16 June 2014 instead of HK$10,000 suggested by her.

12.  In relation to (a), whether I had failed to take into account relevant facts when reaching my decision on 9 June 2014 is not a reason for me to excuse myself from this case.  At most, it would only amount to a reason for me to grant leave to appeal.

13.  As to (b), I ordered the defendant to pay costs on 27 May 2014 because she was absent at the hearing in the morning.  She took out a summons on the same day to set aside my order in the morning and the plaintiff’s solicitor had to come back in the afternoon to deal with it.  I ordered the defendant to pay costs on 25 June 2014 because her application for further time to pay into court the security of HK$20,000 had no merits.  She took out the summons in the morning and likewise the plaintiff’s solicitor had to come in the afternoon to deal with it.  Given that on both occasions, the plaintiff’s solicitor had to come back to court on an urgent basis to deal with the defendant’s applications and having considered the actual time spent at the hearings, I ordered the defendant to pay the plaintiff’s costs on each occasion in the sum of HK$1,200 having regard to the experience of the plaintiff’s solicitor.  Costs should follow the event.  I do not see any bias on my part in the exercise of discretion.

14.  As to (c), I ordered the defendant to pay into court a sum of HK$20,000 as condition for stay of execution on 16 June 2014 because she had failed to pay any rent or mesne profit since 9 November 2013.  She paid into court a sum of HK$60,000 on 31 March 2014 as security pursuant to the order of Deputy District Judge A Chow on 28 March 2014.  That should only be sufficient to cover the rent or mesne profit from November 2013 to April 2014.  Whether she was going to be successful in her application for leave to appeal, she should pay for her occupation of the subject premises.  I ordered payment of security in the sum of HK$20,000 because it should be sufficient to cover rent or mesne profit from May to June 2014.  I do not see this as a sufficient reason for me to excuse myself from this case.

15.  In any event, an application for leave to appeal should usually be heard by the judge who made the decision in the first place.

16.  In respect of the summons taken out on 28 June 2014, I order as follows:-

(a)   Time for service of the summons be abridged.

(b)   The summons be dismissed.

(c)   The defendant do pay the plaintiff’s costs of and occasioned by the summons summarily assessed at HK$900, to be paid forthwith.

Discussions on application for leave to appeal

17.  Now I turn to the defendant’s application for leave to appeal against my decision on 9June 2014.

18.  The defendant puts forward the followings as her grounds of application:-

(a)   The defendant was denied her request for more time and as a result her defence was just based on 6 pages of text messages chosen randomly from over 200 messages.

(b)   Due to ignorance of the law, the defendant failed to (i) give notice of intention to defend; (ii) file an affirmation in one week and (iii) seek leave to file an affirmation.

(c)   I had failed to take into account much of the relevant facts when reaching my decision on 9 June 2014.

19.  Under section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless:-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

20.  In the case of SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA said this in paragraph 17 of the judgment:-

“Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”.

21.  Looking at the grounds raised by the defendant, I do not think the defendant has established that her intended appeal has a reasonable prospect of success. 

22.  As to grounds (a) and (b), in gist, she is just saying that she did not have sufficient time to prepare her case and she was ignorant of the law.  This is not a valid ground.  As stated in paragraph 46 of my judgment dated 9June 2014, the defendant had been given sufficient time to prepare her case and seek legal advice.  The burden is now on the defendant to establish that her appeal has a reasonable prospect of success.  It is not sufficient for her to say that she would have prepared her case much better if she had been given more time and had sought legal advice.

23.  As to ground (c) where the defendant alleges that I had failed to take into account much of the relevant facts when reaching my decision on 9 June 2014, I believe the defendant is misconceived.  At the hearing on 27 May 2014, the defendant, in the course of her oral submissions to the court, also gave some factual information which was not covered by her affirmations.  I had taken into account the same but could not attach much weight to it because it was not evidence under oath. 

24.  Even if one takes the defendant’s oral submissions on 27 May 2014 to their highest, they still do not establish a defence on merits.  The defendant’s purported defence was based on an Alleged Oral Promise.  This was not supported by the evidence and would not be a meritorious defence in any event.  It was only after considering the submissions by the plaintiff’s solicitor and the defendant on 27 May 2014 that I came to the conclusion in my judgment dated 9 June 2014 that the defendant had failed to show a defence on merits.

25.  I do not see the defendant’s intended appeal has any reasonable prospect of success or there is any reason that the appeal should be heard in the interests of justice.

Conclusion

26.  In respect of the defendant’s application for leave to appeal by way of summons filed on 13 June 2014, I order that the same be dismissed.

27.  There be a costs order nisi to be made absolute within 14 days that the defendant do pay the plaintiff the costs of and occasioned by the summons filed on 13 June 2014 and also the costs of and occasioned by the defendant’s summons filed on 14 June 2014, to be taxed if not agreed.