NEW YORY DRY CLEANERS LTD v. KWOK KAI YING AND ANOTHER

IN THE COURT OF APPEAL

Civil Appeal
No. 57 of 1987

_______________

_______________

JUDGMENT

_______________

Clough, J.A.:

1. The Plaintiff in this action appeals from the order of Mayo, J. made on the 14^th May 1987 dismissing the Plaintiff’s interlocutory appeal from the order made by Master O’Donnell on the 4^th May 1987 dismissing the Plaintiff’s application for summary judgment against the 2^nd Defendant under Order 14.

2. The background of the case is briefly that the Plaintiff is a landlord of premises which are subject to Part V of the Landlord and Tenant (Consolidation) Ordinance (Cap.7). It took proceedings for possession against its tenant, the 1^st Defendant, after serving on him what the Plaintiff claimed was an effective notice of termination for the purposes of Part V. After the Plaintiff obtained judgment against the 1^st Defendant by default under Order 13 rule 5 the 2^nd Defendant applied to be added as a defendant under Order 15 rule 10 as a party in actual possession of the premises.

3. A number of interlocutory orders were made thereafter. The relevant application for the purposes of this appeal was an application for summary judgment under Order 14 by the Plaintiff against the 2^nd Defendant. That application was dismissed by the Master. We do not know the reasons for the dismissal. The judge dismissed the subsequent appeal by the Plaintiff for reasons relating to the substance of the matter.

4. Upon the Plaintiff’s appeal coming before us today, Mr. Wong, counsel for the Plaintiff has very properly conceded that the application under Order 14 was not competent because there was in fact no suitably amended statement of claim served on the 2^nd Defendant, so that even if he could be deemed to have given notice of intention to defend by applying to be added as a party, the necessary requirement of a statement of claim which gives jurisdiction under rule 1 of Order 14 was absent.

5. Furthermore, the verifying affidavit required by rule 2 of Order 14 did not refer to the actual facts in the statement of claim and, what is more important, it contained no affirmation of belief that there was no reasonable defence to the action.

6. In those circumstances we felt obliged to take the jurisdictional point as to the competence of the application. Mr. Wong, having conceded that there is a procedural deficiency which, at this stage, cannot properly be remedied, we find that there is no alternative but to dismiss the appeal, not on the merits, but under rule 7 of Order 14 on the grounds which I have just outlined briefly.