XCHRX Mass Ocean International Ltd. v. Wynyard Development Ltd.

DCCJ223/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 223 OF 2001

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J U D G M E N T

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1. Judgment for possession of land has been granted by His Honour Judge Lam on 25 April 2001, and the Defendant now makes an application for stay of execution of that judgment.

2. The complication with the present application is that after the said judgment, the Government announced on or about 21 May 2001 that it is going to resume the land in question by latest before May 2002. It is common ground that whoever occupies the land at the date of the resumption may be able to get compensation from the Government. In such circumstances, the court is very concerned that the parties are not trying to make use of this application to achieve some ulterior goal, for example, to get compensation for the occupation of the land from the Government. The court, therefore, has to approach this application with some caution, and the court is only entitled to take into account factors which are legitimately put before the court.

3. The Defendant together with its sub-tenants run a container depot in the land in question. In order to relocate such business, the Defendant and the sub-tenants have to obtain a permit under section 16 of the Town Planning Ordinance to use another piece of, perhaps, agricultural land to store containers. In such circumstances, the Defendant claims that it would need 5 to 6 months for the whole relocation process. This piece of evidence is not challenged.

4. On the other hand, if the Plaintiff proceeds to issue writ of possession of the land, it is common ground that it would take about 3 to 3 1/2 months before the bailiff is able to execute the writ by gaining possession of the land. In such circumstances, the Plaintiff may only be able to obtain the land in the end of November.

5. In my judgment, a general stay of execution should not be granted in the present case. If the occupants do not vacate the land after the stay period, it would cause further delay to the Plaintiff if it has to enforce the judgment by that time, and this certainly provides room for abuse. On the other hand, sufficient time should be given to the Defendant to relocate. In any event, it would take time for the Plaintiff to enforce the judgment by issuing the writ of possession.

6. Having carefully considered and balanced the interests of both parties, I refuse a general stay of execution. The Plaintiff is at liberty to enforce the judgment by writ of possession, but I also order that the final execution of the writ by entering into possession of the land not to take place earlier than 1 December 2001, which is 6 months after the time I consider that the Defendant should have made arrangement for the relocation.

7. I also add that the parties be at liberty to apply.

8. Both the solicitor for the Plaintiff and counsel for the Defendant do not object to the form of the order I made just now, but they are quite concerned about the time. In my judgment, the order I made will certainly protect the interests of both parties and reduce the risk of abuse. This is the reason I give in relation to the present application.

(Submissions made)