ONG AI MOI AND ANOTHER v. CHAN CHI SHING AND OTHERS

DCCJ6584/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6584 OF 2002

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R U L I N G

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1.  There are two applications before me. Firstly, there is an application by the 2nd and 3rd defendants for leave to appeal against my judgment dated 19 August 2010 in which I allowed the plaintiffs’ application for summary judgment and gave an order of possession in respect of the premises in question. In addition, the 2nd and 3rd defendants also applied for a stay of execution.

2.  The background of the matter and the relevant issues are set out in my judgment dated 19 August 2010.

Principles

3.  No leave to appeal should be allowed unless the intended appeal has a reasonable prospect of success or there are issues which should in the interest of justice be heard by the Court of Appeal, see section 63A(2) of the District Court Ordinance.  The grounds will have to be more than merely arguable, see Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515.

4.  In respect of the application for stay of execution, the relevant principles are set out in Star Play Development Ltd v Bess Fashion Management Co Ltd  [2007] 5 HKC 84.  The existence of an arguable appeal (i.e. an appeal with reasonable prospect of success) was said to be the minimum requirement.

Discussion

5.  The 2nd and 3rd defendants raised three grounds in support of the application. Firstly, it is argued that since I have found that the validity of the tenancy agreement is a triable issue, I should have given leave to defend.  I have difficulty in understanding the point.  The plaintiff claimed that the 2nd and 3rd defendants were trespassers.  In response, the 2nd and 3rd defendants argued that they were entitled to occupy the premises by reason of a tenancy agreement. 

6.  In my judgment, I have found that the tenancy agreement had expired and the 2nd and 3rd defendants had no valid basis to occupy the property.  I fail to see how the validity of the tenancy agreement will affect the order I gave.

7.  Secondly, it is contended that I should not rely on the purported expiration of the tenancy agreement in May 2005 which was not pleaded without the plaintiffs’ amending the statement of claim.  In this regard, the plaintiffs pleaded a case of trespass.  It was the 2nd and 3rd defendants who relied on the tenancy agreement in their defence.  The expiry of the tenancy agreement was therefore not something that the plaintiffs were required to plead in the statement of claim.

8.  Thirdly, it is suggested that I erred in law in allowing the plaintiffs to rely on a course of action that accrued after the writ was issued.  The cause of action in this case is trespass, not the expiry of the tenancy agreement.  The suggestion that the plaintiff was relying on a new  cause  of action  is therefore misconceived.

9.  By reason of the aforesaid, I am not convinced that the appeal has a reasonable prospect of success.  I therefore dismiss the application for leave to appeal and also the application for a stay of execution. 

(Discussion re costs)

10.  Costs of the application be to the plaintiff, with certificate for counsel.  Since I have heard argument, this is an order absolute.