Chau Kin Keung v. Connections Unlimited Ltd.

DCDT000648/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DISTRAINT NO. 648 OF 2001

Coram: H H Judge Carlson in Chambers

Date of hearing: 24 April 2001, 26 April 2001

Date of delivery of judgment: 3 May 2001

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J U D G M E N T

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1. This is an interpleader summons whereunder Mr Alan Burell and Mr Nicolo Ruffy claim items which have been seized by the bailiff pursuant to a warrant of distress issued in these proceedings. These are domestic premises divided into two separate floors comprising the 5th floor and the 6th floor, which is described as the main roof in the bailiff's list.

2. Dealing with Mr Burell's claim first, he being the occupant of the main roof pursuant to a licence agreement entered into between himself and the defendants in this action, an agreement dated 3 November 1999 and which is Exhibit SU-1 in the affirmation of Mr Sherris-Taha, Umesh dated 7 April 2001. Also relevant to his claim is the 2nd affirmation of Chan Ka-wai which is affirmed on 25 April this year, she being the corporate secretary of the defendant company who have purported to allow Mr Burell and Mr Ruffy into occupation of the two separate parts of these premises.

3. In relation to Mr Burell's claim, it is said by Miss Chan that these premises were let to him unfurnished save for various fixtures comprising fitted cupboards and so what is now said on Mr Burell's behalf by Mr Weir, who appears for him, is that it must follow therefore, if I were to accept that evidence, that everything in the bailiff's list under the section entitled "main roof" must belong to Mr Burell and should therefore be released to him.

4. Mr Chau Kin-keung, who is the plaintiff, and who of course resists this summons, makes two principal points which I think are common to both claimants, which is, firstly, they should have been more alert to the nature of the agreement that they were entering into. He suggests that the agreements were illegal given the fact that there is a covenant against subletting and, secondly, of course that neither claimant has been able to produce any receipt or any other evidence beyond the affirmations in Mr Burell's case, and the affidavit and the sworn evidence by Mr Ruffy, laying claim to this property. I think that is obviously a very good point that is made by Mr Chau and one that I am very much alive to.

5. One of course should also look at the nature of the items and many of them are obviously household items. One also must look at the value of the various items, the values being recorded in the bailiff's list and these are clearly modest items of furnishings. Others are a variety of electrical goods and it is frequently the case that people who purchase these goods - some of them for all I know may be second-hand - simply do not keep receipts.

6. I am satisfied on the totality of the evidence in Mr Burell's case that all these items which have been properly and lawfully seized by the bailiff in fact do belong to him and I direct therefore that they be returned to him by the bailiff.

7. Turning to Mr Ruffy's case, I think if anything, his case is the stronger of the two in the sense that not only has he put in evidence by affidavit, but he has also given evidence himself and been cross-examined, and I have found him to be an entirely trustworthy young man. These items are even less substantial and I am satisfied that the ones that he lays claim to all belong to him. I accept his evidence in its entirety. So the items in the bailiff's list on the 5th floor save for items 31, 32, 58, 69, 70, 91, 92, 97 and 98 will be returned to Mr Ruffy.

8. These are the orders that I make in respect of this interpleader summons.

Representation:

Present: Plaintiff in person

BO/HK in person, absent

Mr Weir of Messrs Weir & Associates, for Nicolo P Ruffy and Mr Alan Burell