CHAN FU LIN v. CHASEWELL DEVELOPMENT LTD

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J U D G M E N T

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1. This is an application to stay execution of a writ of possession issued on the 21st September 1988 in respect of office premises known as Rooms 1103 and 1104 on the 11th floor of Kimberley House No. 35 Kimberley Road, Kowloon, pending appeal.

2. The matter was heard before Godfrey J. who delivered a judgment on the 3rd October in which he stated that the Defendant had not shown a defence on the merits. He refused their application to set aside the order for possession. He also refused the Defendant's application for a stay of execution. Fuad V.-P. on the 4th October 1988 adjourned the application so it could be heard inter partes.

3. Counsel for the Appellant in this matter, Mr. J. Mok has very helpfully prepared an chronology of events relating to this matter much of which is not substantially in dispute. It would seem that in March 1988 the Defendant was allowed to occupy the premises by then owner international United Fashion Manufacturing Limited ("Incernational"). It is not in dispute that this was a licence and there was no tenancy between international and the Defendant. In April 1988 the Defendant entered into an agreement with international to purchase the premises but this agreement was never registered and appears to have simply lapsed. There was a belated effort to revive it, due no doubt to the rapid rise in the value of the premises but this does not concern me, it not being argued that the first agreement is enforceable.

4. The next event of significance was that on the 21st July 1988 international agreed to sell the premises to the Plaintiff. This agreement was duly registered. It was due to be completed on the 31st August. Also in July one Wong ping the Managing Director of both the Defendant Company and International, left for Thailand leaving behind considerable debts and there seems to be little doubt that he had appropriated money from the Defendant to which he was not entitled.

5. On the 8th August 1988 the Plaintiff agreed, to reassign the premise to a company called Sanli Industrial Limited ("Sanli"). Completion of the sale was to be also on the 31st August, the same day as the sale by International to the Plaintiff. A letter was sent by the Plaintiff's solicitors to the Defendant on the 23rd August stating that the premises must be vacated by the 31st August in order that the Plaintiff could give vacant possession on that day to Sanli. However on the 31st August there was a meeting between the parties under which it was agreed that this postponement date should be deferred to the 10th September. In her affidavit the Plaintiff said that she was extremely reluctant to do this, as were the officers of Sanli who were present, and it was made very clear that there could be no further delay. However on the 7th August there was yet another meeting at which apparently the wife of Wong Ming agreed to repay the Defendant the money which was alleged to have been taken and it is the case for the Defendant that the Plaintiff agreed to allow the Defendant to remain in the premises until 3 or 4 days after the receipt of such payment by the wife of Wong Ming. This is disputed by the Plaintiff and subsequent events lend strong support to that denial.

6. On the 10th September the Defendant was still occupying the premises and on that day Mr. Choi Wing Woon a director of International had the locks on the premises changed. It is the case for the Plaintiff that in fact completion was carried out between her and International on the 12th September and she then became the legal owner. She has however not been able to give vacant possession to Sanli because the Defendant had in fact re-entered the premises and accordingly Sanli have now issued a writ against the Plaintiff for failure to carry out her agreement with them.

7. On the 14th September the Plaintiff then commenced a proceedings pursuant to Order 113 and applied for an abridgement of time so that an order for possession of the premises could be obtained the next day. This was duly obtained, the Defendants not being present at the hearing although they were aware of it. On the 21st September the Plaintiff issued a writ of possession requiring the Defendant to quit on the 5th October and on the 3rd October the Defendant applied to set aside this order. This application was dismissed as was an application for a stay of execution.

8. It is the case for the Defendant that these proceedings should not have been brought under Order 113 which applies only to the removal of a person who is a trespasser. Here it is Said that the licence to occupy which the Defendant had still remained in force due to the agreement entered into on the 31st August and the licence was not properly revoked prior to he issue if these proceedings. The Plaintiff relies on the decision in Greater London Council v. Jenhins [1974] 1 W.L.R. 155. There the Plaintiff Council was trying to evict the defendant who were operating a charitable shelter, and it was held that the Council s right to the order depended Utah whether or not the defendant's licence to occupy the Premises had expired at the time that the proceedings had staked. At p. 155 Lord Diplock said -

"A licence granted to S. C. H. of short-life property, including that of Elgin Avenue, was thus, In my view, a contractual licence, and it is also, in my view, clear lave that when a contractual licence has been granted a person was leas been upon the premises under the licence cannot be treated as a trespasser until a reasonable time after notice that the licence has been or will be withdrawn. That is clearly laid down in Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd. [1940] A. C. 173. What is reasonable time depends upon all the circumstances of the case, and where the licence has been to occupy premises for residential purposes the reasonable time has reference to enabling the licensee to have an opportunity of taking his effects away from the property. Than was again a matter which was decided by authority winding on the court in Minister of Health v. Bellotti 1944 K.B. 290."

9. Godfrey J. held in his reasons for refusing the application to stay execution of the order for possession that he could not accept for one moment the Defendant's version of the facts which was that there was an open-ended commitment on the part of the Plaintiff to allow the Defendant to stay in the premises for some unspecified and uncertain period i.e. for "three or four days after the payment by Wong Ming's wife of the $1.4 Million. I entirely agree. AS a contractual licencee the Defendant was Entitled to reasonable notice to vacate. This was given by the letter of 23rd August and the time was in fact extended by agreement. I am satisfied that such notice, in relation to commercial premises, was sufficient.

10. Having read all the affidavits which hare been filed by the various patties herein I am in no doubt whatever that the licence to occupy the premises granted to the Defendant expired on the 10th September and they remained in possession thereafter as trespassers. Accordingly the procedure under Order 113 was quite correct and this matter is not one where as submitted by counsel for the Plaintiff there should be a trial of the issues. The issues are in my view perfectly clear.

11. The Defendant submits that a stay of execution should be granted if failure to do so would render the appeal itself nugatory Wilson v. Church (No. 2) [1879] 12 Ch.D. 454. However in Monk v. Bartram 1891 1 Q.B. 346. Lord Esher M.R. held that where a stay of execution had been refused by the judge at trial there had to be special circumstances to justify the Court of Appeal granting such a stay. Here there are, in my view, no such circumstances and, the sale to Sanli being clearly in jeopardy, the justice of the matter requires that there be no stay.

12. Accordingly the application that execution of the order for possession be stayed is refused. The Defendant is entitled to the costs of the application.