Cheung Ping Mee v. Lee Ching Yiu

HCA001866/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1866 OF 1971

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 16th day of November, 1971.

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DECISION

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1. This is an application by Chan Kui Wai for leave to set aside the judgment obtained by the plaintiff against the defendant in default of appearance on the 17th September 1971, for the applicant to be added as a defendant in the action and that execution be stayed until further order.

2. The plaintiff is the registered owner of No. 8 Baker Street, Ground floor and cockloft, Kowloon which premises were let to the defendant as business premises for a term of three years from the 1st July 1968 until the 30th June, 1971 in accordance with a written agreement dated the 1st June 1968 at a rent of $870.00 per month. The premises form part of an entirely new building within the meaning of section 3(1)(a) of the Landlord and Tenant Ordinance in respect of which an occupation permit was issued after the 16th August, 1945. No key or construction money or other premium of a similar nature has been paid by the defendant with the result that the Tenancy (Prolonged Duration) Ordinance Cap. 276 does not apply. The defendant's tenancy expired by effluxion of time on the 30th June, 1971.

3. A writ of summons was issued on the 24th August 1971 and personal service was effected upon the defendant on the 25th August 1971. On the same day a copy of the writ was posted on the main door of the premises. After judgment for possession was obtained on the 17th September 1971 leave was granted to the plaintiff to issue a writ of possession on the 21st October 1971. In support of the application for leave an affirmation of a clerk in the employ of the plaintiffs solicitors stated that a notice addressed to the defendant informing him and all persons in occupation of the premises that the plaintiff had obtained judgment had been sent by prepaid post to the defendant on the 30th September 1971 and that a copy of the notice had been posted at the premises on the 30th September, 1st October, and 2nd October, 1971.

4. The applicant claims that he is a sub-tenant of the defendant and has been in occupation of the premises since about 1969 during which time he has paid rent to the defendant's agent Lee Sung Tak. The applicant states that he did not have knowledge of the proceedings until the 1st October 1971 when he saw the notice referring to the judgment posted at the entrance of the premises. The plaintiff's son in an affirmation dated the 2nd November 1971 stated that the defendant's agent had discussed the applicant's purported sub-tenancy in connection with the proceedings for possession. He was shown a Chinese document signed by Lee Sung Tak and the applicant where by the premises were let to the applicant for business purposes for a term of two years from the 1st August 1969 to the 30th July 1971. A request by the defendant's agent that the applicant be allowed to remain at the premises until July 1971 was agreed to on behalf of the plaintiff. Subsequently a further request was made to the plaintiff to allow the applicant to remain in the premises until the end of September 1971. The plaintiff agreed to this request provided that a legal document was drawn up for this purpose. However no agreement was in fact drawn up with the result that the plaintiff instructed his solicitors to issue proceedings for possession on the 18th August 1971. In any event the plaintiff's son said that the applicant would not have been permitted to remain in the premises after the end of September 1971. This evidence has not been disputed by the applicant.

5. Miss J. Leong, Counsel for the applicant cited Jacques v. Harrison 1883-84 12 QBD Page 165 where the headnote states as follows:-

6. 'If a person, who is not a party to the record, seeks to set aside a judgment by which he is injuriously affected, which the defendant in the action has allowed to go by default, he ought by summons, taken out in the name of the defendant, or if not entitled to use the defendant's name, then taken out in his own name, but in that case served on both the plaintiff and the defendant, apply for leave to have the judgment set aside, and to be allowed either to defend the action on such terms of indemnifying the defendant as the judge may consider right, or to intervene in the action in the manner pointed out by the Judicature Act, 1873. s.24, sub-s.5.

7. Order XXVII., rule 15, is designed to enable judgments by default to be set aside by those who have or who can acquire a locus standi, and does not give a locus standi to those who have none.

8. Miss Leong also cited The Bolivar 1916 2 A.C. P.203 in which the headnote states as follows:-

9. 'Where substantial injustice would otherwise result, the Prize Court has an inherent power to set aside its own decrees of condemnation so as to let in bona fide claims by parties who have not been heard, and who have not had an opportunity of appearing. This power is discretionary and should not be exercised except where there would be substantial injustice if the decree were allowed to stand, and where the application has been promptly made.'

10. Mr. S.C. Yiu for the plaintiff opposed the application on the grounds that the applicant had not taken appropriate steps to intervene in the proceedings as soon as possible after the issue of the writ and on the ground that if leave is obtained it will cause substantial injustice to his client.

11. I do not accept the applicant's statement that the first time he had knowledge of the proceedings was on the 1st October, 1971, but that he should be deemed to have knowledge when a copy of the writ was posted at the premise on the 25th August, 1971.

12. I am of the opinion that the applicant has had ample opportunity, since the issue of the writ, to have taken steps to intervene in these proceedings but that his failure to do so amounts to unreasonable delay. In addition if leave is granted I agree that substantial injustice will be caused to the plaintiff for the defendant's agreement has expired by effluxion of time and the sub-tenant will not stand in a better position than that of the principal tenant. Accordingly I do not consider that leave should be granted to the applicant to set side the judgment. The summons will therefore be dismissed with costs to the plaintiff.

13. Dated this the 16th day of November, 1971.

Representation: