Shangri-la Properties Limited v. United Sino Company Limited

HCA006193/1988

1988, No. A6193

IN THE HIGH COURT OF JUSTICE

HONG KONG

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

BETWEEN

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

Coram: Hon. Liu J. in Chambers

Date of hearing: 27th June 1988

Date of delivery of decision: 27th June 1988

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

DECISION

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

1. This is an appeal from a decision of the learned Master. The matter at issue is obvious. I need not trouble Mr Yu, counsel for the plaintiff.

2. It would be convenient to begin with the consent summons filed on the 3rd November last year, in which judgment for possession of the suit premises was agreed to be entered against the defendant with other relief. A stay of execution was also agreed to be granted on conditions. We are concerned with the stay of execution as to possession only. One of the conditions was that the defendant would cause to be obtained a general restaurant licence within two months from the date of the consent summons. An order was accordingly made by consent and judgment for, inter alia, possession of the suit premises was thereafter entered into against the defendant by the plaintiff.

3. Monetary payments for the use and occupation of the suit premises have been, I am told, paid up-to-date. The two months for the obtaining of the general restaurant licence have now elapsed. The defendant has not been successful in procuring that licence. Counsel for the appellant/defendant stated, on instructions, that time required for such general restaurant licence would likely be a year.

4. The defendant returned to the learned Master for, presumably, a further stay of execution. Whatever did transpire before the learned Master, we now have his perfected order filed on the 24th June : the defendant's application was dismissed; the defendant was granted liberty to restore the application "upon all the directors of the defendant agreeing to give the required undertaking as indicated to the defendant's Counsel". The learned Master further ordered that "upon all the directors of the defendant's company agreeing to give such required undertaking on affidavit or affidavits filed unto Court, there be an interim stay of execution on the order for possession pending the determination of the present application by the defendant upon the restoration of the same". Liberty was also given to both parties to apply.

5. The defendant feels aggrieved. A Notice of Appeal was lodged. The defendant seeks to overturn the decision of the learned Master, apparently to the extent "that the said condition imposed on the Defendant before the hearing on merits in this High Court Action is unreasonable and/or inequitable".

6. It certainly has a flavour of an application for judicial review, but it is not. What is being complained of would seem to be that the learned Master made no determination or declined to hear the application unless a newly imposed condition was fulfilled. I shall return to the order of the learned Master and the complaint of Counsel for the defendant in the instant appeal.

7. In essence, what was sought to be applied for from the learned Master was a further stay. The application was based on various grounds : first of all, it was argued that by virtue of the acceptance of the payment for use and occupation of the suit premises subsequent to the lapse of two months for the obtaining of the general restaurant licence, the condition for stay of execution as to possession had been waived by the plaintiff who could not, therefore, take advantage of the consent order and levy execution against the defendant. Waiver raised in that context could perhaps be resorted to as a ground for resisting due execution. It is no valid ground in support of an application for a further stay.

8. It was also canvassed before the learned Master that the two months estimate in the consent order was given or agreed to by the defendant under a "misapprehension". Then, the defendant should have applied to have the consent order set aside instead of a further stay. No application was before the learned Master for setting aside the consent order. On alleged "misapprehension" without more, it would have been premature for the learned Master to entertain the question of stay.

9. Counsel for the defendant has raised the question of forfeiture. I fully sympathise with his predicament. Relief against forfeiture has been, I believe, extended to a time provision in a contract. From my limited experience, extension of the doctrine has yet to be sought to give coverage to a consent order.

10. Mr Waley, Counsel for the defendant has fairly conceded that on his forfeiture point, relief against forfeiture, he can cite no authorities in support. Whether or not the point of forfeiture was at all brought to the notice of the learned Master, it is not one of the grounds given in the instant Notice of Appeal. Therefore, it is not an issue which should be examined without leave on the Notice of Appeal as lodged.

11. I come back to the order of the learned Master. It would not he right to criticize the Master for shying from making any decision at all. Indeed, he specifically dismissed the defendant's application. He saw fit to grant an indulgence to the defendant by way of liberty to restore and liberty to apply. Insofar as the indulgence granted liberty to restore, he further saw fit to have attached to it a precautionary measure, in the sense that the defendant's directors, all of them, were to give an undertaking not to run or continue to run the restaurant without a proper licence. The condition imposed by the learned Master, rightly or wrongly, for the indulgence so extended to the defendant, has not been fulfilled and will not likely be fulfilled. The indulgence has not been taken advantage of by the defendant and is inoperative.

12. As for the dismissal of the defendant's application by the learned Master, I can find no justification for interferring with his decision. Insofar as the order of the learned Master granted any indulgence to the defendant, such indulgence has not been invoked, as the matter now stands, and it calls for no intervention.

13. Counsel for the defendant seeks a stay of 14 days for proceedings to be instituted for, inter alia, setting aside the consent order. It would not be appropriate for me to make any sweeping statement at this juncture. Suffice it for me to say that the defendant should best be left to make an application for setting aside the consent order and a stay, if it be so advised, to the Master first, particularly, even just on the alleged waiver point, due execution may be resisted subject to litigation and other hazards. I do not accede to the application for a stay.

14. It remains for me to dismiss the appeal with costs.

Representation:

Mr Denis Yu instructed by M/s Deacons for the Plaintiff

Mr Eric Waley instructed by M/s Chan, Lau & Wai for the Defendant.