Bright Success Properties Ltd v. Dias，sandra Mary Elizabeth

HCMP 1944/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1944 OF 2014

(ON AN INTENDED APPEAL FROM DCCJ 4464/2013)

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BETWEEN

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JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.This is the defendant’s application for leave to appeal from Deputy District Judge Timon Shum’s dismissal of her appeal from Master D Ho’s decision dated 20 May 2014 refusing her application to set aside a default judgment in a possession case.

2.The defendant is absent this morning.  By a fax we received before 10:00 am, she asked for an adjournment of the hearing on the ground that she is having some flu symptoms and is applying for legal aid.

3.We are not minded to grant the adjournment.  There is no medical certificate to substantiate her claim of illness, or to tell us the seriousness of her condition.  As for the application for legal aid, the defendant has applied for legal aid before and has been unsuccessful.  Indeed that was why we directed back in November that this hearing be held notwithstanding the pending application for legal aid. Furthermore, the defendant has already put in her written submissions and as we will now explain, there is no merit in her application for leave.  The application for adjournment is therefore refused.

4.Turning to the merits of the application, the judgment being a regular one, the central issue is whether the defendant has shown a defence with a real prospect of success.  Her case that there has been made at the time of the written tenancy agreement for a term of one year of a residential flat an oral agreement, witnessed by the estate agent, that the tenancy would be renewed yearly subject to the redevelopment of the building in question, is unsustainable by reason of the parol evidence rule.

5.In any event, as the deputy judge pointed out, the alleged oral agreement is little more than a bare allegation. It is not supported by any evidence from the estate agent.  The text messages relied on by the defendant simply do not evidence the alleged oral agreement, and are equivocal at best.  The photographs and other material relied on by the defendant do not take her case on the alleged oral agreement any further.

6.In our view, the deputy judge was plainly right in concluding that the defendant’s proposed defence has no real prospect of success.  In other words, there is simply no reasonable prospect of success of overturning the deputy judge’s decision on appeal, and we see no other reason in the interest of justice why the intended appeal should be heard.

7.The application for leave to appeal is dismissed with costs, which we summarily assess at $38,000.

Mr Lincoln Cheung, instructed by Lo, Wong & Tsui, for the plaintiff

The defendant was not represented and did not appear