NG YIH LIN ELAINE v. GROB EDOARDO EMILIO

LDPD 1992/2018

[2019] HKLdT 24

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO LDPD 1992 OF 2018

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REASONS FOR DECISION

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1.  These are two interlocutory applications filed by the respondent on 19 February 2019 and 25 February 2019. The respondent asked to set aside the orders of 4 February 2019 (judgment of the application) and 20 February 2019 (approval of the application for leave to issue writ) (the “Orders”), and also asked for stay of execution.

2.  At the conclusion of the trial on 4 February 2019, I ordered that the respondent do deliver vacant possession of the suit premises to the applicant, do pay the applicant arrears of rent / mesne profits and costs, but subject to a relief until 18 February 2019.  The backgrounds of this case can be found in the Reasons for Judgment that was handed down on 27 February 2019.

3.  On 20 February 2019, the applicant filed an application for leave to issue writ and said that the respondent had failed to settle the arrears of rent / mesne profits and the costs ordered by the tribunal on or before the relief expiration date.  This was approved by the tribunal on the same date.  The Writ of Possession was issued on 27 February 2019.

4.  At the conclusion of the hearing on 12 March 2019, I made the orders as follows: -

(1) Stay of execution of the Writ of Possession until 15 March 2019;

(2) Unless the respondent do pay to the applicant interim rent / mesne profits from 1 October 2018 to 31 March 2019 in the total sum of $120,000 on or before 15 March 2019, the respondent’s interlocutory applications to set aside the Orders of 4 February 2019 and 20 February 2019 be dismissed;

(3) If the respondent could comply with the payment condition in paragraph (2) above, the Orders of 4 February 2019 and 20 February 2019 be set aside and the costs of the application up to today be reserved;

(4) In case if the Orders of 4 February 2019 be set aside, the case be fixed for re-trial in Court No 5 at 9:30am on 8 April 2019 (1 day reserved);

(5) All sums ordered to be paid by the respondent under paragraph (2) above should be paid into the tribunal in cash, by EPS, by cashier orders issued by banks in Hong Kong or by cheques drawn by firms of solicitors in Hong Kong, and such sums received by the tribunal shall be kept in the tribunal until the further order of the tribunal; and

(6) The respondent do pay the applicant the costs of these two interlocutory applications, which is summarily assessed at $400.

5.  I said that I shall hand down the reasons for the decision. I now do so.

Grounds of the Interlocutory Applications

6.  The respondent submitted that due to his health problem he could not attend the trial on 4 February 2019.  He said that after he knew that he could not fly back to Hong Kong and attend the trial, he had made enquiries to the tribunal by phone call in Switzerland and was advised that he could ask for change of trial date by fax.  In addition to his verbal request for change of trial date, he had also sent faxes to the tribunal with supporting documents including a medical certificate.  He knew the trial date, but his then health problem was an accident out of his control, and he could not make a formal application in Switzerland too.  He further submitted that he should have a right to present his case, cross-examine the witness of the applicant and defend himself in these proceedings, and therefore there should have stay of execution of the Orders, the Orders be set aside and a re-trial be fixed by the tribunal.

7.  The respondent had also submitted at the hearing that the judgment should not be right because the Reasons for Judgment had not mentioned all the factors including the audio records previously filed by him as evidence and the telephone conversation between the parties, and that the applicant had confiscated the deposit.

8.  The applicant objected to the two interlocutory applications. The applicant submitted that the respondent had not satisfied the burden of proof that he was unfit for travel.  The medical certificate as filed by the respondent was not issued by a Hong Kong registered doctor and had not stated the medical reasons why the respondent could not travel.  Further, the respondent could have the opportunity to appoint a representative who could then make a formal application to the tribunal for adjournment of the trial, but the respondent had not done so.  Bearing in mind that the respondents had not made interim payments as ordered by the tribunal and up to the date of hearing there were arrears of rent / mesne profits for more than 5 months, the applicant considered that the respondent had just abused the legal process only.

Discussions

9.  Under Order 35 Rule 2 of the Rules of the High Court, Cap 4A,  (1) any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just; and (2) an application under this rule must be made within 7 days after the trial.

10.  When the court is asked to set aside a judgment obtained in the absence of a party, the following “general indications”[1] should be taken into account: -

(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trail, he will normally be bounded by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important; unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court, the application will not be granted unless there are very strong reasons for doing so.

(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered; where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.

11.  The respondent said that he came back to Hong Kong on about 18 February 2019 only and then he filed his 1^st interlocutory application on 19 February 2019.  Although the respondent filed the application to set aside the judgement 15 days after the trial, I consider that the delay was not serious and the overall justice justifies the exercise of discretion to extend the time.

12.  I agree with the applicant that the respondent had not satisfied the burden of proof that he was then unfit for travel.  I have reservation to rely on a letter without details of medical reasons and not issued by a Hong Kong registered doctor. Nevertheless, having considered that the respondent was not legally represented and he was not in Hong Kong on 4 February 2019, I am of the view that subject to condition if any the overall justice requires a re-trial of the case. Although the trial on 4 February 2019 had considered all the documents filed by the respondent and I consider that, just based on the documents filed by the respondent, the respondent has no real prospect of success in re-trial, the process of trial on 4 February 2019 was not perfect because at least the respondent could not have a chance to present his case and cross-examine the applicant’s witness.

13.  I agree to set aside the Orders but subject to condition only.  Up to the date of hearing, more than 4 months had passed since the date of application on 24 October 2018. In the period, the respondent, a foreign passport holder, had not made interim payments as ordered by the tribunal repeatedly. The respondent is now occupying the suit premises and there were arrears of rent / mesne profits for more than 5 months.  If there is a re-trial, there will be a further delay and a possibility that the applicant may then be prejudiced.   In the circumstances, I consider that it is just to protect the applicant being a successful party in the judgment against financial consequences. 

Conclusion

14.  I consider that the respondent should be given a chance to present his case, cross-examine the applicant’s witness and defend himself, but the decision on setting aside should be subject to payment condition.  With a view to balance the interest of the respondent who submitted that there should have a set off, the interim payment made by the respondent would be kept in the tribunal until the further order only, same as the previous interim payment orders.  If the respondent could comply with this payment condition, the Orders be set aside and a re-trial be fixed.  I have checked my schedule, and the parties replied in the hearing that they will be available on 8 April 2019.

15.  Since I granted conditional leave for setting aside, I also granted leave for stay of execution until the deadline for payment on 15 March 2019.  This was an unless order.  If the respondent fails to make the interim payment as ordered, the two interlocutory applications be dismissed.

Costs

16.  After I made the decision and the orders, I asked the parties whether they applied for costs. The applicant asked for costs in the sum of $400, which basically reflected the time costs for preparing and attending the hearing. The respondent submitted that there should be no order as to costs and he had no comment on the amount of claim made by the applicant.

17.  Although I granted stay of execution and conditional leave to set aside the Orders, the respondent asked for indulgence only and the applicant had no fault in the process. In the circumstances, I consider that it is fair and equitable for the respondent to bear the applicant’s costs in these two interlocutory applications.  I assessed the costs summarily at $400.