MAN SUN TRADING LTD v. LAU WING KEUNG STEPHEN

DCCJ 4410/2017

[2019] HKDC 1269

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4410 OF 2017

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DECISION

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History

1.  This is an application by the defendant for leave to appeal against my decision handed down on 17 December 2018 (the “Decision”).  Due to the need to accommodate both side’s diaries, a hearing was fixed on 30 July 2019.  At the hearing, the defendant asked for an adjournment due to the fact that he was applying for legal aid, and the fact that he was having trouble physically to continue with the hearing.  I thus adjourned the hearing and gave directions for written submissions to be filed instead.

2.  By way of history, the plaintiff applied by summons dated 28 May 2018 for interim payment during the pendency of the action against the defendant.  By Order dated 4 October 2018, Master Ho ordered the defendant to pay as interim payment: (i) HK$150,000 for the period from 1 August 2017 to 31 October 2018 within 30 days of the Order; and (ii) HK$10,000 on the 1^st day of each calendar month starting from 1 November 2018 until further order of the court. The defendant was also ordered to pay costs of the plaintiff’s application. The defendant appealed against the learned Master’s decision.  I dismissed the defendant’s appeal in the Decision.  This is the defendant’s application for leave to appeal against the Decision.

Legal principles

3.  The applicable legal principles are trite.  The applicant needs to show a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard[1]. A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful” without having to be “probable”[2].

4.  To meet the “reasonable prospect of success” requirement, an appellant is required to show more than an arguable case - his appeal must have merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed[3].

Background facts

5.  I adopt the background of the case which have been set out in paragraphs 4-10 of the Decision.

Proposed grounds of appeal

6.  The defendant has set out the proposed grounds of appeal in his affirmation dated 24 December 2018.  The defendant says that I had ignored the question of whether the conduct of Yam Chu Fai (“Mr Yam”) was suspicious and whether the rent received by Mr Yam was for the plaintiff’s account.  Mr Yam was the person who filed an affirmation in support of the plaintiff’s application for interim payment in his capacity as the manager of the plaintiff.  There is nothing to suggest that the plaintiff disputes Mr Yam’s authority to act on its behalf in his dealings with the defendant.  There is no allegation by the plaintiff that Mr Yam used the plaintiff for his personal gain.  In any event, the defendant will still have the opportunity to cross-examine and to challenge the authority of Mr Yam at trial.  I am not persuaded that this ground of appeal has a reasonable prospect of success.

7.  The defendant also suggests that the interim payment order was to assist the plaintiff in delaying the proper trial of the action. This is misconceived, the proper trial of the action is not affected by an order for interim payment.  I repeat paragraphs 20 and 41 of the Decision.

8.  The defendant also seems to suggest that the Order made by Master Ho effectively asked him to pay Mr Yam personally.  This is simply not the case.

9.  The defendant also seems to suggest in paragraphs 4 and 5 of his affirmation dated 24 December 2018 that without a proper tenancy agreement, documents or rental receipt signed by the plaintiff, the court should not have ordered interim payment.  I do not see any merit in this argument.  It is the defendant’s case (paragraph 7 of his Re-Amended Defence and Counterclaim) that he took over possession of the Premises and during his possession, he has “been constantly making payments to Mr Yam every few days as rental”.  There is thus little dispute that the defendant recognised that there was a rental agreement in place despite the fact that it was not in written form.

10.  The defendant had filed further written submissions on 19 August 2019 and 9 September 2019.  They largely refer to the same issues raised in his affirmation and I do not consider there to be any merit in these submissions for the present application.

Conclusion

11.  I am not satisfied that the appeal has a reasonable prospect of success.  The summons for leave to appeal is therefore dismissed.

Costs

12.  I make a costs order nisi that costs of the application for leave to appeal are to be paid by the defendant to the plaintiff, with certificate for counsel, on a party and party basis, to be taxed if not agreed.  Unless the parties make an application to vary the above costs order nisi within 14 days from the date of this order, the costs order nisi will be made absolute after the expiry of the said 14 days.