cacv 271/2009

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 271 of 2009

(on appeal from HCA NO. 47 of 2009)




Before: Hon Rogers VP in Chambers

Date of Hearing: 1 March 2010

Date of Decision: 1 March 2010




1. This is an application for stay of execution of an order of Deputy High Court Judge Chan given on 23 November 2009. The judge heardan appeal from the Master which had been an Order 14 application. That had been heard some 12 days prior thereto.

2. The plaintiff’s claim is based on a tenancy agreement of a plot of land in the New Territories. Quite simply, the rent is $40,000per month. It is the plaintiff’s case that the rent was paid initially but after that the cheques that were given for some ofthe months bounced and no further rent has been paid. Under that tenancy agreement there is now nearly $1,000,000 owing. The Mastertook into account the fact that there had already been an order for interim payment last July and that has been honoured in its breachand nothing has been paid.

3. The Master took the view, quite simply, that the grounds for ordering vacant possession were also self evident on the papers and,therefore, proceeded to order vacant possession as well as give judgment for the monetary sum claimed. The judge upheld that judgmentand, on this stay of application, the defendant simply asks that the order for vacant possession by stayed. The defendant does notask for a stay of the order for payment of money as far as I am aware.

4. The defendant’s position is two fold. First it says it has a defence on the merits. As to that, I intend to say very littleother than that I see no merit in the appeal. However, that will be a matter for the Court of Appeal if and when it ever comes tohear this appeal. The other ground for appeal is that Master Levy should not have ordered vacant possession and allowed an amendmentto that effect. That point could have been taken in the court below. It was not taken and it is sought to be taken now with somedocuments which are put in to show that it was the defendant itself that applied for a change of user before the Town Planning Boardin order to enable a barbecue site to be used on the land.

5. In my view the Master was perfectly entitled, given the circumstances of this case, to allow the amendment at that stage and, inmy view objection should have been taken in the court below, had the defendant really seen any merit in it. It is now sought, atthe last minute, to be taken in this court on the basis of evidence which, in my view, does not amount to anything sufficient tocause the court to interfere with the decision.

6. I have asked the defendant’s counsel whether the defendant is prepared to pay into court the rent which would be owing on thelease, which, it is the defendant’s case says is a sham. In other words it is not even the payment to the plaintiff of that money,it is simply a payment into court. The simple answer to that was no. From that, I can only deduce that the defendant is not preparedto put its money where its mouth is and I see no alternative in this case but to refuse the application for a stay of execution.

(Anthony Rogers)

Ms Ronee Y Koo, instructed by Messrs Simon Chan & Co., for the Plaintiff/Respondent

Mr Bruce Lau, instructed by Messrs Eric Yu & Company, for the Defendant/Appellant