Sin Hua Trust, Savings & Commercial Bank Ltd v. Chong Lai Kouk Estong and Others

HCA005208/1982

Action No. 5208 of 1982

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J.

Date of Hearing: 14th February, 1984.

Date of Delivery of Judgment: 14th February, 1984.

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RULING

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1. On 31st October 1983, the plaintiffs recovered judgment by consent against the three defendants to this action which involved, among other things, as I recall, an order for possession of premises being Flat C on the Ninth Floor of Kwong Sang Hong Building (Block A). Pursuant to that consent judgment, a writ of possession was issued. This application is made by a Madam Tsui Ling because, as she claims in her affirmation, she occupies a portion of the relevant premises and does so by virtue of a monthly tenancy granted to her by Chong Lai Kouk Esther, one of the defendants in the action at a date prior to the Deed of Mortgage upon which the plaintiffs founded their claim and consequently, she says, that she would have a defence to any claim for possession made against her.

2. She asks, in the first place, to have judgment set aside; in the second place, to be added as defendant to the proceedings; in the third place, to be given leave to defend; and in the fourth place, for a stay of execution and certain ancillary relief.

3. The basis of fact upon which she makes her application is strongly contested by the plaintiffs who, by affirmations in opposition, point to a number of factors indicating, they contend, that in all probability, the applicant had not been in possession of any part of the premises until quite recently and they challenge the assertion that she is or ever has been a tenant of Madam Chong. During the course of the hearing before me, Mr. Fung made an application for leave to cross-examine the applicant upon her oath. I refused that application because it seemed to me that the very question which had to be investigated under oath was the matter of defence which was being raised upon affirm-ation and it did not seem to me right to investigate or determine that issue during this interlocutory hearing. Now, it is conceded by Mr. Chuk, who appears for the applicant, and has conducted the case for her, as I said during argument, with skill and courtesy, that it would be inappropriate to set aside judgment insofar as it relates to the defendants and that the relief which he is primarily concerned to achieve, subject to his succeeding in the application to be added as defendant and obtaining leave to defend, is the staying of execution of the judgment and he further concedes that since his claim under the tenancy relates only to a portion of the premises, described as a cubicle, that it is right that the stay should only relate to that portion or cubicle.

4. I have come to the conclusion that it is right that the applicant should be joined as a defendant to these proceedings and consequently, it follows that she should have leave to appear and defend the action and to avoid any such order becoming a nullity, it would follow that there must be a stay of execution insofar as the judgment for possession relates to the cubicle or portion which she claims to occupy by right of monthly tenancy.

5. I also think it right, since this application comes late in the day and the plaintiffs are being kept out of their judgment, to make those orders conditional and I do so. At the present time, the applicant claims still to be paying rent to Madam Chong at the rate of $650 a month. So, leave to defend will be conditional upon her paying that sum monthly whether expressed to be by way of rent or mesne profits to the plaintiffs' solicitors, the first payment being in respect of the current month, February 1984. Such payment is to be made on the first day of each month thereafter, and the February payment is to be made within seven days. It will be a further condition of leave to defend that the applicant do furnish keys to the main premises to the plaintiffs within 24 hours. It will be yet a further condition that within 48 hours, she supplies or furnishes to the solicitors for the plaintiffs the names of all other persons occupying the main premises and/or the cubicle which she claims to occupy and I have further taken from Mr. Chuk who appears for the applicant an undertaking that she will not assign let, sublet, underlet or part with possession or otherwise deal with the said cubicle or any part of the premises claimed to be occupied by her under the monthly tenancy or any part or parts thereof to any person or persons, pending the trial or earlier determination of these proceedings or until further order save and except for the purpose of surrendering the same to the plaintiffs provided always that until such trial, earlier determination of proceedings or further order, she, her husband and child shall be entitled to continue to occupy the said cubicle as claimed by her. Costs reserved.

Representation:

Daniel Fung instructed by W.I. Cheung & Co. for Plaintiffs.

Stephen Chuk of Chan & Chuk for Applicant.