Case Document

DCCJ 4726/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4726 OF 2011

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BETWEEN
	TSUI YIN FONG, the Administrator of the estate of TSUI KOON BO (also known as TSUI PO and TSU KUM PO), deceased	1st Plaintiff
	TSUI MING WAI	2nd Plaintiff
and
	EDWARD JOHNSON	Defendant

________________________

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

Date of hearing: 27 December 2012

Date of decision: 28 December 2012

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D E C I S I O N

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1.The plaintiffs successfully obtained from the master summary judgment against the defendant for vacant possession of the property in question and partial judgment on rent in arrears. After the stay of execution for 3 months ordered by the master had expired, the defendant did not move out. Nor was any rent in arrears paid. Writ of possession was therefore issued.

2.The defendant appealed against the master’s decision and applied for stay of execution. The matter was heard before me on 25 September 2012. By my written decision dated 26 September 2012, I dismissed both the appeal and the application (“the 26/9 Decision”).

3.Upon the 26/9 Decision being handed down, the defendant took out 2 summonses. One of them was subsequently dismissed by Deputy District Judge Ganesh on 28 September 2012. Upon that, the defendant took out an application for leave to appeal against the 26/9 Decision.

4.The other summons taken out on 26 September 2012 was however not disposed of on the scheduled hearing date. Nor was the hearing of that summons re-fixed. When I heard the above application for leave to appeal on 30 November 2012, I brought forward that summons for determination as well.

5.By my written decision dated 7 December 2012, I dismissed the defendant’s application for leave to appeal and his outstanding application by summons dated 26 September 2012 (“the 7/12 Decision”).

6.The background and my analysis were set out in details in the 26/9 Decision and the 7/12 Decision. I do not repeat here.

7.Now by summons dated 14 December 2012, the defendant applies for leave to appeal against the part of 7/12 Decision to do with his summons dated 26 September 2012.

8.As explained in the above written decisions, the defendant should know by now that:

(1) according to section 63A(2) of the District Court Ordinance, Cap 336 (“the Ordinance”), 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; and

(2) no further evidence other than evidence as to matters which have occurred after the date of the hearing below may be received on the hearing of an appeal except on special grounds referable to Ladd v Marshall [1954] 1 WLR 1489.

9.It is the defendant’s burden to satisfy either limb of section 63A(2) of the Ordinance.

10.By his summons dated 26 September 2012, the defendant seeks for an order that the court “accepts his counterclaim” in this action for breach of the alleged settlement agreement as well as damages and costs (“the Summons in Question”).

11.As mentioned, the Summons in Question was one of the 2 summonses taken out by the defendant on the same day. The other summons was for “an injunction to the writ of possession or in the alternative an extension to give him time to argue the issue of the settlement agreement”.

12.By the then affidavit in support, the defendant explained that the Summons in Question was necessary because the then pending hearing of the other summons for injunction or extension of the writ of possession might be adversely affected if his claim against the plaintiffs was yet to be filed.

13.If the defendant were right above, it follows from the court’s dismissal of his summons for injunction or extension of the writ of possession on 28 September 2012 that the Summons in Question would no longer serve its intended purpose.

14.As to the relief sought by the Summons in Question, I need only repeat that such relief is unheard of. Nevertheless I ventured to consider as if that was an application to amend the defendant’s pleading. But that would not have succeeded either (see §§29-32 of the 7/12 Decision; §§18-19 of the 26/9 Decision).

15.During the present hearing, the defendant further explained that what he intended was that the court would accept his contentions and evidence, including compelling witnesses to appear before this court, in respect of the alleged settlement agreement for the purpose of his proposed claim.

16.As far as the evidence at the hearing on 25 September 2012 and the evidence sought to be adduced at the hearing on 30 November 2012 is concerned, the consideration has been carried out and explained in accordance with the applicable legal principles (including what is mentioned in §8(2) above) in the 26/9 Decision and the 7/12 Decision. To the extent that it is an attempt to argue that once again in the hearing of the present application, I do not consider that to be proper.

17.Apart from the above, the defendant essentially repeated his contentions and at times introduced yet more allegations about the recent conduct of the plaintiffs against him, his alleged witness and their families.

18.In the circumstances, the intended appeal against the 7/12 Decision in respect of the Summons in Question does not satisfy either limb of section 63A(2) of the Ordinance.

19.The defendant’s summons dated 14 December 2012 for leave to appeal is dismissed. 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.