Best Honour Investment & Development Ltd v. Best Sonic Ltd

HCA004391/2002

HCA 4391/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4391 OF 2002

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Coram: Hon Sakhrani J in Chambers

Date of Hearing: 19 May 2003

Date of Judgment: 19 May 2003

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J U D G M E N T

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1.This is an appeal from the order of Master Au-Yeung made on 13 May 2003 refusing the application of the defendant for an extension of time for relief against forfeiture of the tenancy. The Master had previously on 30 April 2003 refused an application for extension of time. Because of the preliminary point taken by Mr. Au-Yeung, counsel for the plaintiff, Mr. Allan, counsel for the defendant, applied for and was granted leave to amend the notice of appeal as the notice of appeal was in respect of two orders of the Master made on two separate occasions. As Mr. Au-Yeung correctly submitted there should have been two separate notices of appeal. In the event Mr. Allan abandoned the appeal against the order made on 30 April 2003 and proceeded today on an appeal against the order made on 13 May 2003. The appeal is, of course, by way of rehearing.

2.On 3 March 2003 the Master granted the plaintiff summary judgment for possession of the suit premises and arrears of rent and/or mesne profits. It was also ordered that :

“ possession of the above premises be given to the Plaintiff at the expiration of 7 days from the date of service of the Judgment on the Defendant and THAT if within that period the Defendant pay to the court the sum(s), all arrears of rent and/or mesne profits as stated in paragraphs 2 to 7 above up to the day of payment, the Defendant be relieved from the forfeiture incurred herein and the Defendant shall hold the premises according to the tenancy as described in the Statement of Claim without any new tenancy"

No such payments were made within the 7 days period or at all.

3.I am informed that at the hearing before the Master on 13 May 2003 the defendant presented a cashier's order for outstanding arrears of rent and/or mesne profits. However, the cashier's order was made payable not to the plaintiff or its solicitors but to the Hong Kong Government. I am not surprised that in the circumstances the Master doubted, as I am informed, the sincerity of the defendant in making payment to the plaintiff of the outstanding sums.

4.The position before me today is different. The defendant has presented a cashier's order payable to the plaintiff's solicitors for the outstanding rent and/or mesne profits up to the end of May 2003. In addition, Mr. Allan has confirmed that by 5 pm today the defendant will be in a position to make payment of further outstanding sums, namely :

1) the sum of HK$10,427.86 being outstanding interest on the arrears of rent up to today;

2) the sum of HK$57,190.00 being management fees outstanding and up to 31 May 2003;

3) rates in the sum of HK$12,900.00 which are payable by the defendant;

4) costs which have been assessed in the sums of HK$6,000.00 and HK$8,800.00 at the hearings before the Master on 30 April and 13 May 2003.

There should be a sum of HK$140,317.86 in addition to the cashier's order which has been shown to me for the sum of HK$703,483.87.

5.As I have said, in the circumstances the situation before me is different than the situation before the Master. The defendant has, in my view, showed its sincerity in wishing to make payment of all the outstanding sums.

6.I have considered the submissions of both counsel. It is true, as Mr. Au-Yeung submitted, that the defendant has sought to evade its responsibility to pay rent by resisting the Order 14 application and also by bringing separate proceedings which have been struck out. However, that is not, in my view, a sufficient reason by itself for the court to refuse the defendant an extension of time to pay the outstanding sums as a condition for relief against forfeiture of the tenancy.

7.I bear in mind that the defendant has, as submitted by Mr. Allan, over the years that it has been the tenant at the suit premises incurred substantial sums by way of repair of the premises, albeit this was before the plaintiff became the landlord of the defendant. It seems to me that if the defendant does make payment to the plaintiff's solicitors by way of cashier's orders of the sums that Mr. Allan submitted that his client was willing to pay by 5 pm today, then in the exercise of my discretion I ought to extend the time for relief against forfeiture for non-payment of rent.

8.I do so on condition that the defendant do make payment by way of cashier's orders :

(1) for the sum of HK$703,483.87; and

(2) for the said sum of HK$140,317.86

payable to the plaintiff's solicitors by 5 pm today.

Representation:

Mr. Herbert Au Yeung instructed by Messrs C.K. Mok & Co. for the plaintiff

Mr. William Allan instructed by Messrs David Ho & Co. for the defendant