Yanley Investment Ltd v. Federal Hong Kong Products Co Ltd

HCA003630/1978

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

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

Coram: Yang, J.

Date of Judgment: 20 March 1979

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

JUDGMENT

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

1. On 4th January 1979 the plaintiff landlord obtained from the Registrar a judgment by consent for the possession of the suit premises known as No. 3 Cameron Road, ground floor, Kowloon. There was, also by consent, to be a stay of execution for possession until the end of February 1979 provided certain conditions were fulfilled by the defendant tenant.

2. On 23rd February 1979, the tenant took out a summons and applied for an order for a further stay of execution from the end of February 1979 until the 15th April 1979. The Registrar dismissed the summons on the ground that the first order for stay of execution could only be varied by consent.

3. The tenant now appeals against the Registrar's dismissal of the tenant's 23rd February 1979 summons.

4. The affidavit sworn by the defendant's director shows that when the company's consent was given on the 4th January 1979 it was thought that they could move into alternative premises before the end of February, but it was discovered in February that alternative premises would not be available until mid-April.

5. Miss Audrey Eu submitted on behalf of the tenant that this Court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it (vide Halsbury, 4th ed. vol. 17, para. 455 at p. 272). This discretion, it was contended, was granted by Ord. 45 r. 11 and Ord. 47 r. 1(5) of Rules of the Supreme Court.

6. Whilst one may have some sympathy for the tenant's dilemma, change of circumstances subsequent to a consent order is not in my judgment a good ground for what will in effect be a variation of the order. In the present proceedings, though the tenant's case is not framed in terms of variation, in fact a variation, or, to put it more precisely, an extension of the stay of execution is being sought.

7. It may perhaps be possible to vary an order for possession made by consent and with liberty to apply (vide Megarry, The Rent Acts vol. 1, 10th ed., p. 251; Birtwistle v. Tweedale (1954) 163 E.G. 4, C.A.), but this is not the position here. A consent given by the parties is a contract and it is not less a contract and subject to all the incidents of a contract because there is superadded the order of the court. The terms of a contract may be varied by consent, so a consent may not be altered or extended without consent except in cases of mistake.

8. For the foregoing reasons, the appeal is dismissed with costs.

Representation:

Mr. Albert Chin (K.F. Wong & Co.) for Plaintiff/Respondent.

Miss Audrey Eu (Hastings) for Defendant/Appellant.