JOYFUL SPARKLE CO LTD v. NG PIK CHU t/a SHAN YAU CO

DCCJ 1881 of 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 1881 OF 2008

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BETWEEN

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DECISION

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APPLICATION

1.  By way of summons dated 27^th February 2012, the Plaintiff seeks leave to appeal against my decision on 13^th February 2012 in which I refused to set aside the Judgment given on 8^th July 2010 under O.35, r2 of the Rules of the District Court (a judgment given after trial in the Plaintiff’s deliberate absence).  I do not intend to repeat the background of this case as I have already delivered two written judgments on 8^th July 2010 and 13^th February 2012 respectively.

2.  Mr. Fung, solicitors for the Plaintiff prepared a draft notice of appeal.  The crux of the contention is that I have erred in failing to take in account “the Defendant has been owing P [the Plaintiff] rent of at least HK$101,800.”  

DISCUSSION

3.  First and foremost, Mr. Fung seemed to have forgotten what his counsel has said during the setting aside application, namely that the Defendant should owe to the Plaintiff the sum of HK$101,800 on the assumption that I rejected the Defendant’s contention on the oral agreements on the reduction of rent made in 2002. Mr. Fung once wished to retract from what his counsel has said but after I brought him through the two written judgments, he decided not to retract from it.   I went through with him the reasons on 8^th July 2010 and 13^th February 2012 (in particular paragraph 21 extracted hereinbelow) as to why I accepted the Defendant’s said contention.  The question of “HK$101,800” has been fully canvassed during the earlier hearing and resulted in my Decision dated 13^th February 2012 (see paragraphs 5, 8, 9, 10, 21, 25).

4.  I do not intend to repeat the parties’ then contentions.  Suffice for me to quote paragraph 21 of the Decision herein:-

“Regarding the 4^th guideline, I do not agree that the Plaintiff has a real prospect of success on $101,800, which was mostly the Plaintiff’s alleged rent shortfall accumulated in 2002. It is common ground that the Defendant has settled all the rent except the alleged rent shortfall accumulated in 2002 while the Defendant contended by relying on the oral agreements on reduction of rent. Not only there was no single notice of rent shortfall issued by the Plaintiff before 2006, the Plaintiff was willing to enter into another written tenancy agreement with the Defendant in early 2004. The parties’ subsequent conduct tallied more with the Defendant’s case. Worse still, the main character of the oral agreements, Mr. Yee did not prepare witness statement as at the trial on 8^th July 2010 to refute the oral agreements. Further, in this application, he did not prepare an affirmation to refute the allegations of reduction of rent in 2002. The Plaintiff’s claim cannot be said to have a real prospect of success. In brief, this is a regular Judgment, there is no real prospect of success and the court should not set aside the Judgment.”

5.   Although Mr. Fung agreed to the legal proposition expounded by Cheung JA in Li Ching case, he did not deal with the reasons for absence in this leave application.  What Cheung JA expounded is this:-

“Setting aside a default judgment under O.13 and O.19 is different from setting aside a judgment given after trial.  In respect of the former categories, the court is primarily concerned to see whether there is defence on the merits, while in the latter category, the most important factor was the reason for the applicant’s absence at trial.  The Plaintiff failed to deal with this point in this leave application. “

6.  Nonetheless, I did apply the Shocked’s 8 guidelines as approved by the Court of Appeal in Li Ching case.  I applied those 8 guidelines into the factual matrix of this case, mostly objective evidence, so that the discretion should be exercised judicially.  In essence, whether the test for seeking leave to appeal should be “real prospect of success” or “reasonable prospect of success” or “not fanciful but probable prospect of success”, I am of the view that the Plaintiff failed the test.  

7.  To conclude, I do not find any reasonable prospect of success in this intended appeal and there are no other reason that in the interest of justice that the appeal should be heard.  I therefore apply section 63A(2) of the District Court Ordinance, Cap. 336 and refuse the Plaintiff’s application for leave to appeal.  The summons dated 27^th February 2012 is dismissed.

8.  Having heard the parties’ submissions, I also make an order thatthe costs of and occasioned by this application be to the Defendant with certificate for counsel by way of summary assessment in the sum of HK$20,730 payable by the Plaintiff to the Defendant forthwith.