LAI KWAN v. YIP YING HIN

DCCJ4548/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4548 OF 2009

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D E C I S I O N

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1.  There are two applications before me today. The first is in relation to the defendant’s application for extension of time to lodge an appeal, and secondly, is the appeal proper, and that appeal relates to an order made by Master Mak on 10 December 2010, in which summary judgment was granted in favour of the plaintiff.

2.  The plaintiff’s claim is based on what has been  described as a “licence agreement”.   In the home-made defence filed by the defendant, the defendant pointed out that the document which  formed the basis of the plaintiff’s claim was not stamped. Before Master Mak, and initially at the hearing today, the plaintiff pursued his claim on the basis of arrears of rent.

3.  I raised a point with Mr. Ng (appearing for the plaintiff) as to  whether despite the label given to the agreement in question,  the court could look behind that label and determine in substance whether it was a lease and, therefore, subject to the Stamp Duty Ordinance, Cap 117. Section 15 of the Ordinance provides that if a relevant instrument were not stamped, it could not be received in evidence in civil proceedings.

4.  If that were the correct position, it  would then be arguable that Master Mak’s judgment should be set aside.

5.  By reason of Mr. Ng initially maintaining that the agreement was not subject to the Ordinance, there were some discussions between the Court and Mr. Ng today resulting in certain adjournments.  The net result was that Mr. Ng, at the end, accepted that the document which the plaintiff relied upon in this action was subject to the  Ordinance and an offer was made to give an undertaking pursuant to section 15(1)(A) of the  Ordinance. Mr. Ng’s indication was given only at 4.45 pm, as a result of which the original applications, namely the defendant’s application for extension of time and the defendant’s appeal against Master Mak’s decision, were not argued during the original allotted time.

6.  Therefore, this hearing has to be adjourned to another date.  Because of the way the hearing developed, I asked Mr Ng whether the plaintiff’s solicitor is prepared to - to use the term loosely - “stay” any  enforcement procedures, and an undertaking to the effect was offered to the court.

7.  In the result, I will adjourn this hearing to a date to be fixed, with three hours reserved upon the plaintiff’s solicitor’s undertaking that it will adjourn the hearing before Master George Own on 2 February 2011, which is a hearing for the defendant to show cause on a charging order until the resolution of the defendant’s appeal against Master Mak’s order. I  reserve the costs of  today.