Yuen Ka Kwok v. Ho Nai Sun and Another

CACV000138/1980

[Joinder of defendant - tests to be applied]

Coram: Roberts, C.J., Garcia and Liu, JJ.

Date of Judgment: 22 September 1980

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JUDGMENT

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Roberts, C.J.:

Background

1. Part of the premises known as Unit 2 on the 20th floor of Wah Cheong Building was occupied by LAU Lai-yee and by the applicant, Mr. YUEN Ka-kwok from December 1976.

2. On 12th May, 1980, Barker, J. made an order for possession of the premises on the ground of non-payment of rent by LAU Lai-yee, the tenant since April 1977.

3. The applicant, Mr. Yuen, gave evidence at the trial before Barker, J. on 12th May.

4. On 5th June, Mr. Yuen issued a summons, returnable before the Registrar, in which he applied to be joined as one of the defendants in the action and for a stay of execution for the recovery of the premises for a period of six months.

5. The Registrar refused the application on the 14th July. Mr. Yuen appealed against this order to Barker, J., who refused the appeal. The applicant has appealed to this court from that order of Barker, J. Court's power to add a party

6. Order 15, rule 10 empowers the court to join a person as a party at any stage of an action. It is, however, a discretionary power and one which the courts should be slow to exercise at such a stage in the history of the action. Not only has judgment been given; execution has been carried out and possession of the premises recovered by the landlord.

7. The applicant, in order to succeed, must show firstly that his absence was not due to wilful default on his part and that he has a defence on the merits.

8. It can hardly be said that Mr. Yuen did not know that the action was progressing when the action was tried. He was still living in the premises with the defendant, LAU Lai-yee. Indeed, he was himself a witness in the action. He clearly knew, therefore, that possession of the premises was being claimed on the ground that no rent had been paid to the landlord for almost three years.

9. Mr. Yuen asserts that he had been a sub-tenant and had paid an amount equivalent to the rent to LAU Lai-yee as principal tenant throughout that period, but admits that he knew that nothing had been passed on by her to the landlord. He must have, therefore, realized the likelihood that she would be dispossessed and that his occupation would be disturbed, knowing that both he and LAU Lai-yee had been living there without paying anything to the landlord for nearly three years. If there was a proper time for Mr. Yuen to apply to be joined it was before the hearing of the action but he made no attempt to be joined in those proceedings until after judgment.

10. The judge found that these premises were let for commercial purposes. Mr. Yuen's allegation of a domestic sub-tenancy of the entire premises, in an action in which he and Miss LAU Lai-yee had both given evidence, must have been rejected by the trial judge in granting an order for possession on the basis of commercial user.

11. It would be tenuous to allege, as did the applicant, any bona fide subletting to him, by a woman with whom he cohabited, shortly after they entered into possession under a tenancy agreement which had been negotiated by himself. What is more, the judge found that Lau had been substituted as the tenant at Mr. Yuen's request, early in 1971.

12. We see little prospect of Mr. Yuen succeeding in the action, if he were permitted to be joined as a defendant. We therefore refuse to join him as a defendant under Order 15 rule 10.

13. Execution has already been carried out, so that we cannot, in any event, make an order that it be stayed.

14. The appeal is dismissed with costs.

Representation:

Appellant in person

Miss A. MOK (H.M. So & Co.) for Respondent