Wong Suk Yee v. Wong Chiu Wai

CACV000015/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Leonard, V.-P. and Fuad, J. A.

Date of Judgment: 22 February 1983

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This is an unfortunate case because great difficulty has been experienced owing to procedural irregularities. The Plaintiff on 5th February 1982 issued a writ for possession on the ground that moneys due under a tenancy agreement had not been paid. On 5th March a Defence was filed, together with a Counterclaim for relief from forfeiture. On 22nd November 1982 the matter came on for trial for the second time, there having been a hearing which was adjourned.

2. At the first hearing the Plaintiff and the Defendant appeared in person. At the resumed hearing the Defendant was absent. The case was concluded and judgment for possession was entered on the Plaintiff's claim. Unfortunately the learned trial judge appears to have overlooked that there was a counterclaim. He could, of course, have dismissed the counterclaim for want of prosecution, if the matter had not been dealt with at all. On the other hand, there appears to have been some reference to the counterclaim before him, because a solicitor appeared before the judge on the second hearing - not apparently on behalf of the Defendant, but having been asked by the Defendant to hand in a   document, which he did. It was a copy of the judgment in a decided case dealing with relief from forfeiture. Although the learned judge had this in front of him, there is not one word in the judgment which he then delivered which refers to the counterclaim and, in particular, there is no order discernible in his judgment in relation to the counterclaim: there were an order for possession and an order for payment of arrears of rent and/or mesne profits.

3. The Defendant had been absent because he had chosen to go abroad on business. Shortly thereafter he came back and he discovered that there had been an order for possession made against him. He appreciated that there had apparently been no order made in respect of the counterclaim and he wished his counterclaim to be dealt with. However, unfortunately again, there was an error, because the summons which he proceeded to take cut, although a summons (dated 6th December 1982) for a stay of execution and for a hearing of the counterclaim, was supported by an affidavit which referred to a "review" of the judge's decision. The Defendant was not seeking to appeal against the judgment on the claim. He could have done so, and his appeal would have come to this court. He did not do that: he wanted to accept the judgment which had been given on the claim but to pursue his counterclaim. That, in my view, was not a review at all. There was no order on the counterclaim. There was nothing to review. Therefore no question can possibly arise as to the jurisdiction of the judge on the ground that he was not the judge who made the order for possession and that he had no power to review the decision of a brother judge.

4. The learned judge considered the matter and he made an order for relief from forfeiture. Unfortunately this judge also referred to a "review". On several occasions he used that word. Nevertheless it seems to me that he had recognised what was the true position. It is true that he started by saying that there was an application before him for review of the previous judge's " That was quite wrong, because there was no application for a review of the order made on the claim, which was the only thing decided by the first judge. The second judge went on to observe that there was nothing on the record in the first trial to show that the counterclaim had been considered and he said "I decided to deal with it". That is what he understood he was doing: he was trying for the first time the Defendant's counterclaim and he was perfectly entitled to do that.

5. However, there was this unfortunate departure from the usual practice. Any counterclaim - or claim for that matter - is normally dealt with on oral evidence. In this case the matter having been presented to him as though it were a review and evidence having been tendered on affidavit, he decided, in the absence of any opposition from the advocates who were then appearing before him on both sides, to deal with the whole matter on affidavit but with reference to the evidence which had been given before the first judge on the claim. He considered, then, the affidavits, the record and all the papers, together with the submissions made on behalf of the parties, and he came to the conclusion that the Defendant ought to be given relief. It is against that decision that the present appeal is brought.

6. There were further procedural irregularities. On 30th December 1982 the Plaintiff took out a summons fox review of the order for relief. On 18th January there was a further summons for review of the order for relief or for leave to appeal. On 18th January the District Judge, apparently dealing with both those summonses or, it may be, treating the second summons as having been intended to replace the first, refused to review his decision - or rather, I think, more accurately he reviewed and confirmed his decision but granted leave to appeal to this court.

7. There are six grounds of appeal in the Notice of Appeal. In substance, I think, what was intended was to raise two matters. The first was to complain that the counterclaim had been dealt with on affidavit. I have already said that it is unfortunate that a counterclaim should be dealt with on affidavit, ' but the learned judge did have power under the rules of court to decide issues on affidavit and, in the absence of any complaint by the parties, it seems to me it is too late to come to this court and complain.

8. I said that there are just the two points which are raised. The second ground of appeal I do not understand, because it complains that the judge did not hear "the actual facts", which I take to mean that he did not hear the evidence: but he did have evidence before him. It is said that he "did not assess the merits of the case". There is no reason to believe that he did not fully consider the evidence before him and assess the merits.

9. Ground 4 alleges that he "failed to appreciate the actual hearing of the case". Again, I find that difficult to understand. Then it is suggested that the first judge "had already decided in favour of the Defendant". The first judge had done no such thing - and that is what caused the whole problem. The first judge did not consider the counterclaim. He reached no decision on the counterclaim and there was no decision on the counterclaim in favour of either party, let alone in favour of the Defendant.

10. Ground 5 alleges that the judge failed to consider the solicitor's submission on behalf of the Plaintiff that the Respondent who came for equity had not come with clean hands. What apparently is suggested here is a failure by the Defendant in three ways. The first was that, although he was asking for relief, he had not paid the moneys due into court. The second was that, when he came before the first judge on the hearing of the Plaintiff's claim, he gave evidence that everything which was due had been paid - a piece of evidence which the learned judge rejected because, as now seems to be accepted, the true position was that the basic rent had been paid all along but that at a particular date a dispute arose as to the payment of maintenance charges: the Defendant denied that he was bound to pay those charges. At one stage there was a dispute as to how much of a lump sum was due in respect of rent and how much in respect of management fees. That dispute was resolved by a decision of a court presided over by Judge Liu, as he then was. There was then a further question which arose in the present proceedings as to whether it was the Plaintiff who was entitled to receive the management fees or whether they ought to be paid to an association of residents in the building.

11. The third complaint under Ground 5 was that there was a long history of failure to make payments and of distress for rent. Now, as I understand it, it is accepted that the distress in every case arose because of a dispute over the management fees and that the basic rent has been paid all along. We thus have the position that the learned judge had before him a tenant who, having unsuccessfully disputed that he was bound to pay management fees but who was all along paying the proper basic rent, was asking for relief. As has been said by Mr. Justice Fuad on several occasions during the course of the argument, it is difficult to believe that any judge faced with these circumstances would not have granted relief. The learned judge thought it proper to grant relief and for my part I have no hesitation in saying that his decision was right. I, therefore, would dismiss this appeal.

Leonard, V.-P. :

12. I also would dismiss this appeal and for the reasons given. Once one accepts that this matter was properly before Judge Ryan and that no decision had been come to by Judge Barrington-Jones on the counterclaim, then to my mind no difficulty can possibly arise as to whether or not relief against forfeiture should have been granted. I think it is quite clear that relief should have been granted and would dismiss the appeal.

Fuad, J. A. :

13. I agree what has fallen from the lips of my learned brothers and have nothing to add. I, too, would dismiss the appeal.

22nd February 1983.