GREEN ISLAND CEMENT COMPANY LIMITED v. LUI WAH t/a SPEEDWELL AUTO SERVICES

IN THE COURT OF APPEAL

(ON APPEAL FROM THE DISTRICT COURT OF HONG KONG)

CIVIL APPEAL NO. 57 OF 1986

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JUDGMENT

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Clough, J.:

1. This is an appeal from the decision of Judge Remedios on the 29th of January 1986 dismissing an application by the Defendant under Rule 64(7) of the District Court Civil Procedure (General) Rules to set aside an order for possession that was made under Rule 64 by the same Judge on the 24th of September 1985.

2. Briefly the background of this matter is that the Respondent issued a summons for possession on the 12th of June 1985 under Rule 64. That rule is precisely the same as Order 113 of the Rules of the Supreme Court. It provides a summary procedure for obtaining possession in cases where the defendant is either a trespasser or is a licence who has stayed on beyond the time permitted by his licence. The procedure is clearly intended to be used in a plain straightforward case where there is really no issue to be tried.

3. The Respondent's claim in the summons was that the Appellant was in occupation of a small area of land belonging to the Respondent and comprising about 2,000 sq. ft., being the remaining part or portion of Kowloon Marine Lot No. 40. The Respondent's contention was that the Appellant was on that land without the licence or consent of the Respondent. The application was supported by a short affidavit which did not enlarge upon the background of the case, as is perfectly proper in an application of this nature. The secretary of the Respondent company made an affidavit in which he said that the Appellant, with others, entered the land at a time not within the Respondent company's knowledge and erected illegal structures on the land which he was occupying unlawfully for his business as a garage for car repairing. The affidavit exhibited a letter dated the 31st of May 1985 by which the Respondent had given the Appellant notice to vacate the land and remove all his belongings and structures within 3 days.

4. On the return date for the summons which was the 2nd of July 1985 the Respondent was represented by a solicitor and the Appellant appeared in person. The judge, who kept a meticulous note of these proceedings throughout, has recorded that the Appellant told the court that he was opposing the application, that the land was not part of the remaining portion of Kowloon Marine Lot No. 40 and that he, the Appellant, had purchased the land on the 3rd of January 1971 from a Mr LAM Mu-shing for $9,500. So, clearly the Appellant was at this stage opposing the application on the basis that the title of the land was not in the Respondent but in the Appellant who claimed that he had purchased it from Mr LAM Mu-shing. When this occurred the judge very properly gave directions to the parties for the filing of evidence and directed that the Appellant was to file an affidavit setting out all the material facts, with exhibits, upon which he relied, and the Respondent was given leave to file evidence in answer. The hearing was then adjourned to 26th of July 1985.

5. Having been given the opportunity to file evidence, the Appellant made an affidavit opposing the application. He exhibited a number of copies of entries in the Land Registry relating to Kowloon Marine Lot No. 40 which he deposed proved that the land in question did not belong to the Respondent. He went on to say that he bought the land in 1971 from an illiterate old man and had not asked for any documents of title. He complained of the limited time he had been given to vacate the land. In answer to this evidence, the Respondent filed an affidavit made by Mr Lau in which Mr Lau exhibited the Plaintiff's Crown lease dated the 14th September 1904 relating to Marine Lot No. 40. He also exhibited a copy of an assignment dated the 20th of January 1981 and a Deed of Surrender dated the 20th of September 1980, from which it was possible to demonstrate that the land in question was in fact the remaining portion of Marine Lot No. 40 and belonged to the Respondent.

6. On the 24th of September 1985 the adjourned hearing took place. Again the Respondent was represented by a solicitor and the Appellant appeared in person. The record shows that the Appellant submitted that the land did not belong to the Respondent. He claimed that it had belonged to Mr LAM Mu-shing who sold it to the Appellant. The Appellant said I have no proof LAM Mu-shing is the owner of the land I purchased." He said he had occupied the land for 14 years and he had no proof of how long LAM Mu-shing had occupied the land before selling it to him, apart from having a sale note. He acknowledged that he had no evidence that the land belonged to someone else. Having heard that evidence and those submissions the judge declared himself to be satisfied that on the documentation before him the Respondent was the owner of the land. He went on to say that as the Appellant was neither a tenant nor a licensee, the Respondent was entitled to an order for possession. The judge made an order for possession but granted a stay to the 30th of November 1985, which gave the Appellant about 2 months grace.

7. In my judgment that decision by the learned District Judge is quite unimpeachable.   He employed the summary procedure in a case where the defence advanced by the Appellant was that the land did not belong to the Respondent but to the Appellant who was able to furnish no evidence to establish that defence, whereas the Respondent had clearly proved its title. There was no evidence that the Appellant was a tenant or a licensee. The Appellant took various proceedings afterwards which I do not think I need mention because they were abortive, and were actually withdrawn when he went to solicitors who obviously gave him advice to take that course.

8. On the 9th of January 1986, the Appellant, by his solicitor, issued an inter-partes summons applying for the revocation of the order for possession or an extension of time for compliance with the order for possession, or for the dismissal of the Respondent's summons for possession. Evidence was filed on both sides in connection with this application. The Respondent, through its solicitor and counsel, took the point that there was no jurisdiction to entertain the application because the Appellant was really asking for a review under section 53 of the District Court Ordinance and the 1 month period provided for the availability of that procedure had expired. The judge rightly found against the Respondent on this point, because Rule 64(7) expressly confers power on the court to set aside an order of this nature.

9. The substances of the Appellant's evidence in support of his application which went into some detail, and which I do not propose to dilate upon now, was that there had been a relationship between himself and the Respondent company for some years, beginning in about 1971 or 1972, which had resulted in his occupying land which he described as the 'A' land and the 'B' land, to the east and north of the subject land in these proceedings. His evidence was that he occupied this land for the purpose of conducting a garage business where he repaired vehicles, including vehicles of the Respondent company. He said that a Mr. Fung, who was the sales supervisor of the Respondent company, originally let him into possession and he had remained there with the implied or express approval of other members of the management of the Respondent company. This was signified by the fact that for two years at least, in the earlier years, he made use of the Respondent company's electricity and water supplies.

10. He went on to say amongst other things that the arrangement was such that he was eventually, as the years went by, repairing some of the Respondent company's cement carrying vehicles. He also gave evidence about the structure which he said he erected on this land and was a permanent structure, eventually with a metal roof of some kind. He described the facilities which he installed in these premises underneath this structure which were the facilities normally associated with repair works for motor cars.

11. The Appellant described how in 1984 he had been asked to vacate the 'A' land and the 'B' land and eventually proceedings were brought against him by the Respondent company after they sent him a letter on the 17th of November 1984 requiring him to vacate the land by the end of that month when Government intended to resume it. He resisted those proceedings which were also brought under Rule 64 before the same judge. There were terms of settlement eventually under which he was to be paid $100,000 and he had to vacate the land by a stipulated date in January 1985.

12. The Respondent company filed evidence in answer from Mr Brooker and Mr Lau. For the purposes of this appeal I do not think I need to enlarge upon their evidence. There were clearly issues raised as to the precise circumstances of the arrangement between the parties. The matter was one which might well have led to a trial had it not been for the earlier proceedings. Suffice it to say that the evidence adduced on behalf of the Appellant all went to seek to establish that he had been given a licence to occupy the land and that he had incurred expenditure on the land to the knowledge of the Respondent company. He also contended that the notice he had been given was inadequate. So he was really relying on the implied licence followed by an inadequate notice. As appears from his solicitor's submissions and the cases he cited, he was also relying on the principles of equitable or proprietory estoppel.

13. The judge dismissed the application on the footing that, in so far as the Appellant was seeking to rely on all this evidence which I have referred to in these affidavits, it was evidence that was available to the Appellant at the time when he was originally defending or opposing the Respondent's application for an order for possession of the land now in question. The judge applied the well established principle that a court will not normally set aside its decision on a particular matter on the basis of new evidence being available unless it is fresh evidence, previously not available, which, if believed, would have made a material difference to the decision.

14. He rightly held that the evidence was not fresh, because there was nothing new that had arisen since he made the order for possession, or been discovered since he had made the order. In my judgment he also rightly applied the principle that a notice to determine a licence is effective to determine the licence notwith-standing that the time given to vacate the premises may be inadequate or unreasonable. Bearing in mind that the Appellant had originally been required to remove his garage on the 17th November, 1984 and at that stage the Appellant had asked for 4 months grace, and bearing in mind that, as far as the subject land is concerned, the Appellant had been required to vacate it by a letter dated the 31st of May 1985, albeit within 3 days, the judge concluded rightly, in my judgment, that the licence, if there was one, had in any event been terminated by the date of his decision and that the Appellant had in fact had more than reasonable time to vacate the premises.

15. In my judgment, the judge having the discretion that he undoubtedly had under Rule 64(7), exercised it in a perfectly proper manner. Furthermore, having regard to the way these proceedings were conducted, the position is that the Appellant unhappily conducted his defence on a particular basis when faced with the application for the possession order. When that defence was rightly rejected, he was seeking to use Rule 64(7) for the purpose of running a completely new and different defence and thereby set aside the previous order. In my judgment, Rule 64(7) is not intended to be used in this way to enable a Defendant to relitigate a matter when he has already been given every opportunity to do so, and then seeks to relitigate the same matter on different grounds which were available to him originally.

16. I would, therefore, dismiss this appeal, but, as the Respondent has indicated to this court by its counsel that it is prepared to grant a 6 months stay if the appeal is dismissed, I would order that such a stay of the order for possession be granted with effect from to-day.

Cons, V- P :

17. I agree with the reasons given by my Lord.  I, too, would dismiss the appeal.

Fuad, J.A. :

18. I also agree and would dismiss the appeal and in the light of the generous offer made by Counsel for the Respondent on their behalf, I agree that our order should grant a stay of execution of 6 months from to-day.