Ever Gold International Development Ltd v. Vincent Thomas

DCCJ 1138/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 1138 OF 2013

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DECISION

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1.The defendant seeks leave to appeal against my judgment dated 22 July 2013 (“the Judgment”) whereby I dismissed his appeal against the order of Registrar Lui on 21 June 2013. In this Decision, I shall adopt the abbreviations used in my Judgment.

2.For the purpose of this appeal, the defendant took out a summons dated 9 August 2013. By his summons, the defendant also asks for a stay of execution.

3.In his supporting affirmation, the defendant maintains that his expert evidence will soon be available and he asks the execution of the Judgment to be stayed until the admission of such expert evidence.

4.This application is being made out of time. In view of the fact that the delay is only slight and that there is no objection by the plaintiff, I proceed to consider the defendant’s application on its merit. 

5.To recap, this court rejected the application of the defendant to adjourn his appeal on 22 July 2013 for the purpose of his preparation of expert report. This court has come to the conclusion that the expert evidence purported to be produced by the defendant is not relevant to the plaintiff’s claim and the defendant has failed to meet the requirements set out in Ladd v Marshall.

6.In this application, the defendant also submits a few recent correspondence between certain government bodies and him indicating that there is a likelihood of the existence of illegal structures in the Property.

7.Under section 63A(2) of the District Court Ordinance, Cap. 336, the court shall not grant leave to appeal unless it is satisfied that the appeal has a reasonable prospect of success. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v. KL [2009] 4 HKLRD 125 at § 17 per Le Pichon JA.

8.In this Decision, I shall not repeat the factual background of this action, which is covered in the Judgment. In a nutshell, the defendant failed to pay rent to the plaintiff and refused to leave the Property after the determination of the Tenancy Agreement pursuant to the Break Clause. His complaint is that there were, and still are, illegal structures and certain defects in the Property rendering the Tenancy Agreement illegal. Even on the assumption that what he says is true and correct, the Tenancy Agreement cannot be illegal and in my judgment, he has no defence in law to the plaintiff’s claim.

9.In the premises, the expert evidence purported to be produced is not relevant to the plaintiff’s claim and would not assist the defendant. Further, the defendant has never explained why such expert evidence could not have been made available at the hearing before Registrar Lui. I feel to see how I erred in not granting the defendant the adjournment so that he could obtain such expert evidence.

10.In fact, the defendant did not begin to explain how my discretion was exercised wrongly.

11.In regard to his purported defence, in the Judgement, I have already explained why it cannot be accepted to be reasonable. At this hearing, the defendants did not begin to explain how my analysis went wrong.

12.In the result, I am not satisfied that the defendant’s intended appeal has any reasonable prospect of success. Nor am I satisfied that there is any other reason for his appeal to be heard. I accordingly dismiss his application for leave to appeal and refuse to grant him any stay of execution.

13.Costs should follow the event and the defendant should pay the plaintiff costs of this application, which is summarily assessed at HK$10,000. I make an order nisi to this effect.