GO AURORA B. & FAMILY v. YEUNG PUI YEE, SANDY

CACV 82/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 82 OF 1998

(ON APPEAL FROM NT NO. 361 OF 1997)

-------------------

----------------------

J U D G M E N T

----------------------

Liu, JA:

1. But for the personal appearance of the appellant without legal advisers, the history of this case need not be repeated. It all began with the appellant's application for a new tenancy. The appellant was a tenant of the 1st floor, Rear Portion of Wing Hing House at No. 48 Queen's Road West. That tenancy was held under a Tenancy Agreement in writing dated 29 July 1995. It granted a two-year tenancy to the appellant from 1 August 1995 to 31 July 1997. Rental was $7,500 per month on a two months' rental deposit.

2. On 18 October 1997, the appellant made an application to the Lands Tribunal for a new tenancy. The appellant had been in arrear. The matter came before His Honour Judge Li on 19 January 1998. The judge ordered vacant possession for the landlord respondent, giving the appellant the benefit of relief against forfeiture under s. 21F of the High Court Ordinance. The appellant had 4 weeks from the date of the order to pay the arrears which had accrued from 1 December 1997. The appellant was also ordered to pay fixed costs at $1,000 within the same period. That is, in substance, the order made by Judge Li. The judge also granted the appellant a follow-up order which would, on payment of arrears, allow her application for a new 2-year tenancy to run from 1 December 1997, at a slightly increased rent of $7,500 per month, with a two-month rental deposit at a pro rata increased rate but otherwise on the same previous terms. The appellant accepted those orders of the judge but she was late in making payment pursuant to s. 21F of the High Court Ordinance, so that the statutory relief against forfeiture afforded her by the order of the judge could not work to her advantage. After the expiration of the period of 4 weeks for payment of the arrears together with the $1,000 fixed costs, the appellant applied to the judge on 19 February 1998 for an extension of two months to pay. The matter came before Judge Li on 5 March 1998 when the appellant's application was refused. The events then took an interesting turn because on the very next day, 6 March 1998, all arrears were paid up. However, even up to 12 or 13 March 1998, the $1,000 fixed costs was left outstanding. On 6 March 1998, immediately upon payment of her arrears the appellant sought a review the judge's refusal to extend time to pay. Her application was returnable before Judge Li on 18 March 1998, on which day her application for review was denied.

3. Under O. 60A r. 3 of the Rules of the High Court, the appellant had 21 days to appeal against the judge's refusal to extend time and that would take it to 26 March from the date of the order of 5 March 1998. The appellant lodged her Notice of Appeal on 1 April, 5 days out of time. The appellant has furnished no reasons for her delay.

4. I am not persuaded that the judge has been shown to be wrong in refusing to exercise his discretion to grant an extension of time beyond the 4 weeks to pay the arrears and the $1,000 fixed costs. In this case, it is clear that the judge's refusal to grant an extension is not an exercise of discretion with which this court may interfere. There is no substance in the appellant's appeal, and in any case, there are no reasons why an extension of time, if sought, should be granted to her for lodging the instant appeal. In the circumstances, I would dismiss her appeal.

Leong J.A.:

5. I agree that the appeal should be dismissed. I have nothing to add.

Mortimer V-P:

6. I also agree. For the reasons given this appeal should be dismissed. The order of the Court, therefore, is that the appeal is dismissed. The respondent landlord has not appeared on the appeal. There will be no order for costs.