Tsui Yin Fong and Another v. Edward Johnson

DCCJ 4726/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4726 OF 2011

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Before: His Hon Judge Leung in Chambers (open to public)

Date of hearing: 30 November 2012

Date of decision: 7 December 2012

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D E C I S I O N

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1.In this tenancy dispute, the 1^st plaintiff represents the estate of the deceased registered owner of the property in Mui Wo, Lantau. The 2^nd plaintiff, son of the deceased, was at the material time landlord while the defendant was the tenant of the property. The master granted summary judgment against the defendant for vacant possession of the property and partial judgment on rent in arrears. The defendant did not move out after the stay of execution for 3 months ordered by the master had expired. Writ of possession was therefore issued.

2.The defendant appealed against the master’s decision out of time and applied for stay of execution.  After hearing, I handed down my written decision on 26 September 2012 whereby I dismissed the appeal and application for stay of execution with costs to the plaintiffs (“the Decision”).  Costs were later summarily assessed at HK$5,000.

WHAT HAPPENED AFTER THE DECISION

3.On the same day when the Decision was handed down, the defendant took out 2 summonses:

(1) the first one for, among other things, an “injunction restraining the execution of the writ of possession”; and

(2) the second one for an order that the court “accepts his counterclaim” for breach of a settlement agreement with the plaintiffs who allegedly agreed to let him stay at the property.

4.The first summons mentioned above was dismissed by Deputy Judge Ganesh on 28 September 2012.  It was on the same day when the defendant took out the summons for leave to appeal against the Decision.

5.The second summons mentioned above was fixed to be heard on 1 November 2012.  However, the defendant once again applied for legal aid and sought to adjourn that hearing.  The hearing was indeed not held; yet not re-fixed either.

6.As to the defendant’s application for legal aid, it was once again unsuccessful.

7.Besides hearing the defendant’s application for leave to appeal, I also proposed to deal with the second summons taken out by the defendant on 26 September 2012 mentioned above.    The parties had no objection.  In support of both summonses, the defendant has in fact filed affidavits respectively but similar in content.

8.Though represented by counsel during the last hearing before me and the subsequent hearing on 28 September 2012, the plaintiffs now act in person.  During the hearing, the 2^nd plaintiff was present.

LEAVE TO APPEAL

9.According to section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be given unless the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.

10.As discussed, the defendant gave no explanation for filing the appeal against the master’s decision out of time (see §§11-12 of the Decision).  By appealing against the master’s decision, the defendant sought to “vacate” the summary judgment.  Before me then was a rehearing of the plaintiffs’ application for summary judgment.  I saw no merits in the defence put forward by the defendant before the master (see §§14-20 of the Decision).

11.However the defendant sought to adduce further evidence to assert a settlement agreement between the parties subsequent to the master’s decision.  As such, that could not have been relied on to impeach the decision of the master or the judgment.  It could only be relevant to his application for stay of execution (see §§21-22 of the Decision).  I concluded against him on the basis of the materials before me, including the further evidence to the extent as might be adduced (see §§23-32 of the Decision).

12.As to the present appeal, the defendant filed an affidavit with a view to adducing even further evidence.  The defendant will have to overcome the hurdle under O.59, r.10(2) of the Rules of the High Court which stipulates that no further evidence other than evidence as to matters which have occurred after the date of the hearing (being the last hearing before me) may be received on the hearing of an appeal (against the Decision) except on special grounds.

13.By special grounds, the court would see if the conditions in laid down in Ladd v Marshall [1954] 1 WLR 1489 are satisfied, namely:

(1) the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(3) the evidence must be inherently not improbable.

14.Considering his affidavit, I am not convinced that the appellate court will accept that condition (1) above is satisfied.

15.In court, the defendant represented that he just managed to obtain a statement of his representative responsible for reaching the alleged settlement agreement. That does not explain why the same evidence could not have been obtained with reasonable diligence for use at the hearing below.  As mentioned, the defendant already sought to adduce further evidence during the last hearing before me.

16.I raised in the Decision all the doubts about the allegation of a valid and binding settlement agreement (see §§23-32 of the Decision).  By his recent affidavit, the defendant sought to say further in this respect; hence the further evidence.

17.According to recent affidavit, the defendant admittedly expected a written agreement or memorandum but none was entered into.  In his own words, the terms of the alleged (oral) settlement agreement were “left unspecified”.  He suggested that it could take the form of a tenancy agreement running a monthly basis.  He also suggested that the length of period of his continuous stay at the property, though allegedly promised to be as long as he wants, could be viewed in the light of the amount of damages that he reasonably expected the plaintiffs to pay him for the assault with legal costs or the rental value of the property so long as it does not exceed HK$240,000.

18.If accepted, all those tend to be testament to the uncertainty of the alleged settlement agreement.  In court, he suggested that the court may nevertheless imply reasonable terms to the alleged agreement.  I do not see how.

19.The categories of implied terms are well established as a matter of law.  But none is implied to remove uncertainty that goes to whether there was a valid and binding agreement.  Nor is it implied simply to make an agreement a more reasonable one for the parties.

20.In his affidavit, the defendant suggested the alternative of “detrimental reliance” on the alleged promise by the plaintiffs that he could stay at the property for as long as he wants (that is if there was no valid and binding agreement).  Allegedly acting on such promise, he has acted to his detriment.

21.The alleged detriment included: (a) his not preparing to move out of the property; (2) not pursuing the High Court action (HCA 706/2012) for 3 months; and (3) agreeing to drop the criminal charges against the men who were responsible for assaulting him.

22.Refusing to move out of the property was consistently the defendant’s stance from the outset.  It is strange for the defendant to categorise such stance of his as the consequence of his act on the alleged promise of the plaintiffs.

23.I refer to my observation about the High Court action (see §§25-28; 30 of the Decision).  As the defendant acknowledged in his affidavit, the action was intact.  What he now complained about was that nothing has been done in that action over the past 3 months.  I do not see what detriment or compromise of right, in law or fact, has thus been caused to him.

24.In court, the defendant complained about the difficulties in proceeding with the High Court action as a result of having acted on the alleged settlement agreement.  According to him, pursuant to the alleged settlement agreement, he agreed to drop the criminal charges in relation of the alleged assault.  As a result, the Director of Legal Aid refused to assist on the ground that his claim for the personal injuries has no merits.

25.Insofar as the defendant is complaining about the alleged “loss” of legal aid is concerned, it is pure speculation that legal aid would have been granted, had he not dropped the charges.  Insofar as his right and capacity to proceed with the action is concerned, the defendant could act in person as he has been doing in the present case.  Such right and capacity has not been compromised.  The civil claim for personal injuries caused by the alleged assault does not rest on whether there have been criminal proceedings.

26.As to my observation about the defendant’s alleged dropping of criminal charges against those who were responsible for his assault, I do not repeat here (see §29 of the Decision).  Only that caution must be exercised in considering his assertion in the recent affidavit about the kind of understanding then sought to be achieved between the police and him in, so to speak, settling the dispute. Importantly, the defendant somehow stated in his affidavit that his complaint, upon his agreeing to drop the charges, was disposed of by way of binding over. But when asked in court, the defendant corrected himself and said that it was not binding over.

27.I am not convinced that the further evidence now sought to be adduced on appeal, if adduced, would satisfy the other conditions set out in Ladd v Marshall (above).

28.The 2^nd plaintiff made no submission.  The defendant submitted that as a result, the court ought to allow his application pursuant to what he described as “summary” procedure.  That cannot be right.  The 2^nd plaintiff did state the plaintiffs’ objection to the defendant’s application.  It is always the burden of the defendant to satisfy section 63A(2); otherwise no leave to appeal shall be given.  He fails in doing so.

THE SUMMONS DATED 26 SEPTEMBER 2012

29.The defendant seeks by this summons an order that the court “accepts” his introduction of a counterclaim in this action for breach of the alleged settlement agreement, damages and costs.  As mentioned, the defendant filed an affidavit in support which is similar in contents to that filed in support of his application for leave to appeal above.

30.The relief sought by this summons is unheard of.  Considering this as an application to amend the pleading, I need only repeat that the alleged settlement agreement came to exist after the judgment was entered in the present case.  Cause of action in contract accrues upon breach which therefore happened, if at all, even afterwards.  That did not happen as at the time of the writ or the filing of the defence.

31.The defendant’s contention of equitable set-off by the intended counterclaim is apparently an attempt to capitalise this court’s discussion of the relevant legal principle (see §§18-19 of the Decision) but in reality misapprehension of the same.

32.There is no merit in the application.

ORDER

33.The defendant’s summons dated 26 September 2012 (i.e., the second summons taken out on that day as mentioned above) and that dated 28 September 2012 (for leave to appeal) are dismissed.  Considering the present circumstances, I propose to make no order as to costs of these applications.  The costs order is nisi and, in the absence of application in 14 days to vary, shall become absolute.

The 1^st plaintiff, in person, absent

The 2^nd plaintiff, in person, present

The defendant, in person

Interpreter’s assistance would be arranged for the 1^st and the 2^nd plaintiffs, if necessary, for receiving this decision