St. Chare Corporation Co. Ltd. v. Xipho Development Co. Ltd.

CACV000238/1996

IN THE COURT OF APPEAL

1996, No. 238
(Civil)

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Coram: Hon Litton, V.-P., Godfrey and Ching, JJ.A. in Court

Date of hearing: 26 February 1997

Date of judgment: 26 February 1997

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J U D G M E N T

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Litton, V.-P.:

1. The respondent is the landlord of premises known as No. 1202-6 on the 12/F of the Harbour Centre, Wanchai. The appellant is the tenant under a tenancy agreement dated 14 October 1994, for a term of three years commencing 15 September 1994 at a monthly rent of HK$466,272 payable in advance.

2. The rent was in arrears. On 13 February 1996 the respondent issued a writ in High Court Action No. A1849/96 claiming arrears of rent for the period 1 November 1995 to 29 February 1996. Attempts in the meanwhile to distrain for rent took place, but these were unsuccessful so the action continued. In the same action the respondent also sued a number of guarantors. Then on 6 May 1996 the respondent commenced another action High Court Action No. A4983 of 1996 claiming (a) arrears of rent, rates and management expenses for the period 1 March to 30 April 1996 and (b) an order for possession. In the same action a number of guarantors for the rent were also sued as defendants.

3. On the application of the appellant the Master made an order for stay of the second action. This order was made on 30 October 1996.

4. On 14 November 1996 Leong J on appeal from the Master set aside the Master's order to stay the second action. Hence the appeal before us.

5. The point taken on behalf of the appellant is, in effect, that the second action is an abuse of the process of the court, because all the reliefs sought in the second action could have been sought by amendment in the first. I make no observations as regards the validity of this point. The fact of the matter is that when the second action was commenced on 6 May 1996 the respondent as the landlord had an undoubted right of action which it sought to pursue by proceedings in the High Court. It is bizarre to suggest in these circumstances that the exercise of a right of access to the court could be an abuse of the court's process. The judge was undoubtedly right in setting aside the Master's order and I would dismiss this appeal with costs.

Godfrey, J.A.:

6. I entirely agree.

Ching, J.A.:

7. I also agree.

Representation:

K.M. Chong (M/S Anthony Y.L. Au & Co.) for the Appellant

Ambrose Ho (M/S Winston Chu & Co.) for the Respondent