Luk Ping Fai v. Ho Pui Har

CACV000131/1982

BETWEEN

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Coram: Hon. Leonard, V-P., Cons & Fuad, JJ.A. .

Date: 19 November 1982

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JUDGMENT

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Leonard, V-P. :

1. This is an appeal from the refusal of the defendant's application for an extension of time within which to comply with conditions contained in an Order of Judge Tang that judgment against the defendant for possession of premises be set aside on condition that the defendant do within 7 days pay arrears of rent and mesne profits. In order that the matter be seen in its proper prospective it is necessary for me to set out a chronology of what occurred.

2. On the 15th of May, 1982 a writ was issued for possession of certain premises on the basis that the premises were business premises; service of that writ was affected on the 17th of May and on the 28th of June, 1982 there was an application for judgment in default. On some date which does not appear from the record the defendant made application for legal aid and an application for judgment in default was refused under the ground that there was still time to file a defence. On the 28th of July, the time having run out the application was restored and judgment in default was given on the 5th of August. On the 9th of August the defendant was notified of the judgment and on the 12th of that month she took out an application to set it aside.

3. The writ had sought possession on two grounds. One was for non-payment of rent and the other was the expiration of a Notice of Termination under the Part V of the Ordinance.

4. In answer to the claim under Part V of the Ordinance the defendant proposed to argue that the premises were domestic premises notwithstanding the fact that the respondent had secured a certificate of primary user to the effect that they were non-domestic. We have in other cases commented on the effect of such a certificate and there is no need for me to go into that here.

5. In considering the application to set aside the judgment Judge Tang must have formed the view that the defendant's case was such that she deserved a hearing on the merits. He, therefore, set aside the judgment and ordered that arrears of rent and mesne profits be paid within 7 days. Well within that period of 7 days the defendant had paid the amount of arrears of rent and mesne profits to her solicitors. Unfortunately due to negligence her solicitors had failed to pay it over to the other side and did not do so until the 11th of September. In the meantime on the 9th of September the plaintiff's solicitors without communication with the defendant's solicitors had applied for a writ of possession and fi. fa.

6. The letter of the 11th September was ignored by the, solicitors for the plaintiff when it was received and they did not communicate with the solicitors for the defendant. The Order that a writ of possession should issue was made an the 18th of September, 1982 and on the 24th September, 1982 the defendant made the application which was refused by the Order from which this appeal is brought.

7. The trial judge in refusing the Order set out the grounds upon which the parties relied and took the view that the plaintiff would be, in his own words, unjustifiably prejudiced by an Order to set aside the judgment. He considered that the defendant, since she had not contested the certificate of primary user although she based her defence upon domestic user of the premises did not have a good defence on the merits and found that the defendant would not suffer hardship as her remedy would be to recover against her solicitors. With respect to the trial judge I cannot find that firstly the plaintiff had proceeded at all the times. The defendant's solicitors were admitted negligent and so admitted on affidavit. The plaintiff's solicitors, to my mind, behaved without that high degree of professional integrity which I would expect. For they did not inform the solicitors for the defendant of their intention to apply for the writ of possession and fi. fa. before doing so. Having received the letter of the 11th of September they did not pay any attention to it. The letter enclosed a cheque for the arrears and they neither returned nor cashed the cheque but apparently put the letter on one side. They did not inform the Court before whom the application for the writ of possession was pending. Had they done so, or had they immediately refused and returned the cheque undoubtedly there would have been an immediate application for an extension of time to the judge. I cannot see that any prejudice which the plaintiff might suffer could be said in any way irreparable. He would be entitled to mesne profits or arrears of rent for the period of delay. On the other hand the position with regard to the defendant is very different. She would be deprived of the right to have her case heard on the merits. For these reasons I have no doubt that the judge was wrong to take the view he did. He should have extended the time for the payment of the arrears of rent in the circumstances. The arrears of rent were late but not because of any fault of the defendant. For that reason I would allow this appeal. I would finally remark that it has been my observation in a number of appeals from the District Court that matters are delayed rather than hastened by applications which are intended to shut out from the door of the Court the opposing litigant. We have seen this in this Court time and again. However, I would allow this appeal for the reasons which I have given.

Cons, J.A. :

8. I agree with my Lord the Vice-President that the appeal should be allowed. To shut the doors of the Court in the face of a litigant is a very serious step. To do so for a reason that is little more than technical is something that should be done only where the prejudice to the other side is irreparable. With respect to the learned judge below the prejudice to the plaintiff in the present instance does not come up to that standard. At most it would amount to a delay in obtaining possession which could easily be compensated for by damages. The judge appears to have been strongly influenced by what he thought was the defendant's slim chance of success. Again with respect I think that was a matter for the judge who had earlier set aside the original judgment and there had been no appeal against that decision. I appreciate that this Court is very slow to interfere with matters that are left to the discretion of judges at first instance. But to my mind in the circumstances of this case justice demands that we should.

Fuad, J.A. :

9. I entirely agree with what my lord the Vice-President and my brother Cons J.A. have said and I also would allow the appeal. Since we are disagreeing with the judge below, I will add a few words of my own.

10. I would simply say that although it is well established that the Court of Appeal will hesitate before it interferes with the discretion of a trial Judge, nevertheless it seems to be quite plain that the Judge wrongly exercised his discretion and he should not have refused extension of time in the particular circumstances of the case. I am sorry to note that this matter has had to reach the Court of Appeal for a decision to be made that the case should be heard out on its merits.

Representation:

Warren Chan (Chung & Kwan) for Appellant (Defendant)

Ronny Tong (Kwan & Kwan) for Respondent (Plaintiff)