Spring Enough Ltd v. Limbu Chandrakala

CACV34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

civil APPEAL NO. 34 OF 2004

(ON APPEAL FROM NO. LDPE 1532 of 2003)

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BETWEEN

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Before: Hon Yeung JA and Lam J in Court

Date of Hearing: 31 March 2004

Date of Judgment: 31 March 2004

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JUDGMENT

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Hon Yeung JA (giving judgment of the Court):

1.The applicant, Spring Enough Ltd sought possession of the premises at Shop 15, Hop Yik Commercial Centre, 33 Hop Choi Street, Yuen Long, NT (the suit premises) against the respondent- Limbu Chandrakala in LDPE 1532 of 2003 on the basis of non-payment of rent.

2.The respondent resisted the application, alleging that when she signed the tenancy agreement, the rental was not filled in and the agreed monthly rent was in fact $14,000 per month and not $15,000. The respondent did not, however, dispute the non-payment of any rent since September 2003.

3.Member Lam in the Lands Tribunal rejected the respondent’s onlycontention and found that the agreed monthly rent was $15,000.

4.On 20 January 2004, the Lands Tribunal granted an order in favour of the applicant for possession of the suit premises.

5.The Lands Tribunal also ordered the respondent to pay arrears of rent at $15,000 per month from September 2003 until delivery of vacant possession.

6.Relief against forfeiture was granted to the respondent conditional upon the payment of the arrears of rent within 14 days from the date of the order.

7.The respondent, having failed to comply with the condition, filed a notice of appeal on 9 February 2004, seeking more time to pay the arrears of rent at a reduced rate of $14,000 per month.

8.On 25 February 2004, another member of the Lands Tribunal,  Mr. Lo rejected the respondent’s application for a stay of the order of the Lands Tribunal until the disposal of the appeal.

9.On 27 February 2004, the respondent applied to the Court of Appeal for a stay. The application was listed before Yuen JA on 11 March 2004.

10.A temporary stay until 11 March 2004 in favour of the respondent was granted on 8 March 2004.

11.On 11 March 2004, Yuen JA concluded that the respondent did not have a good chance of succeeding on appeal. However, to avoid the risks of the respondent being turned out of the suit premises, thus rendering the appeal nugatory, she granted the respondent’s stay application conditional upon her paying into court $75,000 by 25 March 2004, paying $15,000 to the applicant on 15 March 2004 and paying the applicant the monthly rent of $15,000 on 15^th of each month.

12.The respondent did not meet any of the conditions. She now seeks to appeal against Yuen JA’s order. 

13.The respondent, through her husband, proposes to repay the arrears of rent by the end of May 2004. The suggestion is that her financial ability does not permit her to immediately settle all the arrears of rent.

14.The respondent’s appeal has no chance of success. She had been in arrears of the rent for a long time. Whether to grant her indulgence of a stay pending appeal is a matter of discretion. In the exercise of her discretion, Yuen JA had already adopted a most sympathetic approach to the respondent.

15.The respondent has failed to comply with the conditions laid down by Yuen JA and the applicant cannot reasonably be expected to agree to any further indulgence. There is no clear indication that the respondent will be able to pay up the arrears of rent by the end of May 2004.

16.We see no reason to depart from Yuen JA’s order at all. There is no valid basis for any further indulgence to be granted to the respondent. Her appeal is dismissed.

17.In the light of the background of the case and the fact that the applicant is not properly represented today, we make no order as to costs.

Applicant: In person (Represented by Ho Wan Shan, Joanna).

Respondent: In person (Represented by Elthaf, Chaudhry Muhammad).

Respondent's application for leave to appeal to Court of Final Appeal dismissed by Court of Appeal. Please refer to CACV34/2004 dated 5 May 2004