Lo Chi v. The Protective Gloves Manufactory Ltd

HCA001404/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1404 OF 1969

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Coram: Huggins, J. in chambers.

Date of Judgment: 6 December 1969

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JUDGMENT

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1. This is an application for a stay of execution upon a judgment for possession. The premises concerned are used by the defendants in connection with their business of the manufacture of protective gloves. The premises were originally let by the plaintiff to the defendant on a two-year tenancy, which expired in April of this year. Shortly after the expiry of the tenancy the plaintiff issued proceedings for possession. Those proceedings were subsequently discontinued when the defendants set up the Tenancy (Notice of Termination) Ordinance as a defence. After withdrawal of the proceedings the plaintiff served a six months' notice to quit which has now expired and as a result of which judgment is now given.

2. The question is whether I ought to grant a stay of execution and, if so, for how long. The defendants are asking for a stay of some four months in order to enable them to transfer their business to a new building, now in the course of execution, in which they have purchased an interest. The plaintiff is prepared to give time for the defendants to move out but he is not prepared to allow the defendants as long as they are now asking. It is contended on behalf of the plaintiff that the defendants have known for two years that the lease they had would expire and that on top of their two-year term they have had the six months resulting from the failure to serve a notice in accordance with the Tenancy (Notice of Termination) Ordinance before the expiry of the term - and they say that it would be inequitable to allow the defendants to remain in now that their legal interest has expired. The plaintiff says that he has agreed to sell this property, that he requires vacant possession to transfer to the purchaser and that he will suffer loss if he is unable to take advantage of the present high price of property. I am told that there has been some negotiation between the plaintiff and the defendants for a stay on terms that the defendants pay a substantially increased sum by way of damages for use and occupation. Those negotiations have come to nothing and I am by no means sure that they are really important.

3. The cases are not very revealing as to the matters which a court is entitled to take into account when considering a stay of execution. All that the books say is that the stay must be for a reasonable period. I have referred to the well-known cases of Sheffield Corporation v. Luxford⁽¹⁾ and Upjohn v. Macfarlane⁽²⁾. A passage from the judgment of Talbot, J. in the former case was cited by Somervell, L.J. in Jones v. Savery⁽³⁾:

In the same case Somervell, L.J. referred to the fact that a longer period might well be granted where a warehouse had been let on terms including a comparatively short notice to quit.

4. As it seems to me the court has to ride a course between making a new contract between the parties and doing injustice to the defendants by giving them insufficient time to move out. In my view the most important aspect is that the judicial discretion should be exercised so as to give the defendants no more than is reasonably necessary to enable them to vacate the premises and that I should not have more than a passing regard to the need for them to move into new premises. Unfortunately I do not here have any evidence at all to indicate the nature of the machinery and other equipment which the defendants have in these premises. They have, in my view, not taken all the steps which they ought to have done in order to prepare themselves for the inevitable day of moving and therefore the time to be allowed should be fairly stringently limited. In all the circumstances I think that one month would be a proper period.

5. There will be judgment for the plaintiff as claimed with an order for assessment of damages by the Registrar and there will be a stay of execution for one month on the order for possession.

6th December, 1969.

Representation:

R. Young (Edmond Cheung & Young) for the Plaintiff

Duffy (Peter Mark & Co.) for the Defendant

(1) 1929 (2) K.B.D. 180

(2) 1922 (2) Ch. 256

(3) 1951 (1) All E.R. 820, 821.