Spring Enough Ltd v. Limbu Chandrakala

CACV000034A/2004

CACV 34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 34 OF 2004

(ON APPEAL FROM LDPE 1532 OF 2003)

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Coram: Hon Woo VP and Hon Cheung JA in Court

Date of hearing: 29 June 2004

Date of judgment: 5 July 2004

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

Background

1.This matter arose out of a claim brought by the applicant (the landlord) in the Lands Tribunal for arrears of rent for certain ground floor premises in Yuen Long, New Territories, let to the respondent (the tenant) and for possession of the premises for non-payment of rent.

2.At the hearing before the Lands Tribunal, the main issue raised by the tenant was that the rental was $14,000 instead of $15,000 per month as claimed by the landlord. The tenant's case was that when the tenancy agreement was signed, the rental was left blank, ie, no rental was written on the agreement. This, the landlord denied. The landlord's case was that during the period when SARS was prevalent in Hong Kong, it had agreed to reduce the agree rental of $15,000 by $1,000 only for a period of three months.

3.After hearing the parties, Mr Lam, a member of Lands Tribunal, ordered the payment of arrears of rental for the period between 8 August 2003 and 7 September 2003 in the sum of $10,000 and thereafter at $15,000 per month. He also made an order for possession of the premises and granted relief against forfeiture under section 21F of the High Court Ordinance, Cap 4, on condition of the full payment of all the arrears. That decision was made on 20 January 2004.

4.On 9 February 2004, the tenant took out a notice of appeal against the decision.

5.On 11 March 2004, Yuen JA granted conditional stay of execution of the order for possession of the premises.

6.Against Yuen JA's order the tenant appealed. On 31 March 2004, this Court (Yeung JA and Lam J) dismissed the appeal.

7.On 15 April 2004, the tenant filed a summons and an affirmation to seek further stay of execution, and that was refused by Yuen JA on 20 April 2004.

8.On 5 May 2004, this Court (Yeung JA and Lam J) refused to grant the tenant leave to appeal against its judgment of 31 March 2004 to the Court of Final Appeal.

9.In the meantime, on 24 April 2004, the landlord took out a summons, mainly to seek the execution of the order for possession without further delay, and at the same time, to seek security for costs of the tenant's appeal.

10.On 29 April 2004, Yeung JA ordered the tenant to pay $3,000 into court within 7 days as security for the landlord's costs of the appeal, failing which the tenant's appeal against the decision dated 20 January 2004 of the Lands Tribunal be dismissed without further order, and that in the meantime, the appeal be stayed. On 10 May 2004, the tenant paid $3,000 into court.

The applications

11.On the same day of 29 April 2004, the tenant filed a notice of appeal against Yeung JA's order. Two grounds were mentioned in the notice of appeal, namely,

(1) From Yuen Long to Central, a round trip fare is only $42. The landlord should not have been allowed to claim such a large amount of $3,000.

(2) The tenant had made a part of the payment and the matter was to be resolved soon.

12.This is the application before us.

13.On 17 June 2004, the order for possession of the premises was executed by the court bailiff. On the same day, the landlord wrote to the court to apply for the release of the $3,000 in its favour.

14.At the hearing before us on 29 June 2004, both parties were absent, but the tenant's husband, Mr Elthaf, appeared on her behalf. Mr Elthaf told us that the appeal was still afoot and was fixed to be heard on 27 June 2004.

The security

15.When Yeung JA made the order for security for costs in the sum of $3,000 on 29 April 2004, he did not appear to have given any reason. While it may be correct for the tenant to say that a round trip fare from Yuen Long to Central only costs $42, we are quite sure that the security for the costs of appeal does not only relate to the transportation charges. The security would inevitably relate to the estimated costs of the appeal. Such costs would include the transportation charges as well as the time and effort estimated to be spent by the landlord in preparing for the appeal and for appearing before the court to oppose the appeal. While the history of the court proceedings between the parties demonstrates that both have not been legally represented and will unlikely to be legally represented on the appeal, we are not disposed to say that sum of $3,000 is too high as to justify our interfering with the exercise of discretion by Yeung JA. This disposes of ground (1) raised by the tenant.

16.On ground (2), Mr Elthaf told us that the tenant had already paid to the landlord all the arrears of rental up to 20 June 2004 and the tenant was in financial difficulty. He also mentioned the dispute between the parties as to the deposit for the tenancy. We do not see the relevance of ground (2) or any of the matters mentioned by Mr Elthaf, none of which has any bearing on the reasonableness or otherwise of the amount of the security.

The release of the $3,000

17.We have not taken into account the fact that possession of the premises has been obtained by the landlord on 17 June 2004 as a consideration affecting the security for costs ordered by Yeung JA. However, the fact that possession of the premises has been recovered by the landlord does not justify his applying for the release of the $3,000, because the appeal against the Lands Tribunal decision is still pending and has not been disposed of. The landlord's application to release the $3,000 to it is, to say the least, premature and must be dismissed.

Conclusion

18.In the premises, the tenant's appeal against Yeung JA order is dismissed. The application of the landlord for the release of the $3,000 in its favour is also dismissed. We make no order as the costs in respect of both matters.

Representation:

The applicant, Spring Enough Limited, absent

The respondent, Limbu Chandrakala, absent, but appeared by her husband, Mr Elthaf Chaudhry Muhammad, in person