UPION DAM OF HONG KONG LTD v. CHEUNG MEI HANG AND ANOTHER

No. 2139/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an appeal from a decision of Master Barnett in which he ordered the Respondent to be joined as a defendant and gave leave to defend in a mortgagee's action for possession. The Plaintiff is the Union Bank of Hong Kong Limited and had obtained an order for possession against the mortgagor and 1st Defendant, Cheung Mei Hang.

2. The ground upon which the Respondent had obtained leave was that he had taken a tenancy of the suit premises prior to the date of the mortgage. It is a common place ground for making an application of that sort. What he said on affirmation before the Master was that he had been a tenant of the suit premises since a date in 1978, the mortgage having been executed on the 12th of February 1981, and therefore it is said that the tenancy was not taken subject to the terms of the Mortgage Deed.

3. Now it is right to say that there was before the Master, as there has been before me, evidence on affirmation in contradiction of that assertion from a number of people who whilst acknowledging that the Respondent was a tenant at the date at the hearing before the Master he had been so only since some time in 1982. Nevertheless, the Master ordered the Applicant to be joined as the Defendant and gave him leave to defend subject to certain terms which included the requirement that the Applicant should pay the current rent or mesne profits to the Plaintiff rather than to the Defendant in the action. It is against that decision that appeal is now made and Mr. Ip who appears takes the point that the weight of the evidence on affidavit before the Master was very much against the contention of the Respondent. Further he says there is a discrepancy between the Respondent's affidavit and the defence which he filed pursuant to leave being given in that in the defence he made reference to a percentage increase in the rent which was never referred to in his affidavit. Therefore, says Mr. Ip, the Master was wrong in allowing the Respondent leave to defend or at least that he ought to have imposed more stringent terms. It could only have been right to impose more stringent terms than were imposed if the Master had been satisfied that the defence put forward was shadowy or so short of merit that it came close to being no defence at all. I do not see how the Master could have taken that view any more than I do now.

4. Here there is a conflict. It may be that on the day the evidence of those who put forward a different version will be preferred to that of the Respondent. It may be that notwithstanding the numerical superiority of the opposition that the Respondent's version will prevail. Who can tell at this stage? It is something which can only be resolved at the hearing. I do not see any reason to upset the decision of the Master or vary it in any way by imposing more stringent terms. This appeal stands dismissed.

5. Now the Respondent has not been present at this hearing. There is no criticism intended of Mr. Ip but it is, I think, unfortunate that events have turned out as they have. Service was effected by registered post. That is not only a perfectly proper manner of service, it is the manner provided for in the rules. Apparently Mr. Yip, the Respondent, was not at home when the postman called and a slip was left asking him to pick up the registered package at the Post Office. He neglected to do so and in due course the registered package was returned to sender. That was on the 18th of February this year and nothing has been done since to bring to the Respondent's notice the fact that the appeal was for hearing today. Had it not appeared to me that the appeal was without merit, I would in all probability have adjourned the hearing so that a further attempt to effect service could have been made but it seems to me that it would have been wrong to do that and to incur additional cost since I had taken the tentative or provisional view that the appeal was unlikely to succeed whether or not Mr. Yip was present. Therefore, I allowed the matter to proceed. I would suggest that in future when this situation or this kind of situation arises that it would be wise, without the intervention of the Court to try to effect service by some alternative means to avoid the risk of the proceeding being adjourned.