CACV 240/2007








H & K Investment Limited Applicant
Andrew Kwong Respondent / Appellant


Before : Hon Tang VP in Chambers

Date of Hearing : 21 August 2007

Date of Decision: 21 August 2007




Hon Tang VP (giving the decision of the Court) :

1. This is an application by the respondent for stay of execution pending his appeal from the decision of District Judge M Wong givenon 6July 2007.

2. The learned judge has earlier refused a stay of execution.

3. The order which was made on 6 July 2007 reads as follows:

1. The Respondent’s request to make oral application at the hearing to declare the trial a mistrial is refused;
2. The application for adjournment is refused;
3. The time for the Respondent to file the Amended Notice of Opposition be extended to today;
4. Re-service of the Amended Notice of Opposition be dispensed with;
5. The Respondent do deliver vacant possession of the suit premises known as 新界澄碧邨3座B室地下連花園 to the Applicant;
6. The Respondent do pay the Applicant arrears of rent/mesne profit at the rate of $3,000.00 per month from 1 July 2006 until deliveryof vacant possession of the suit premise;
7. The Respondent do pay the Applicant management fees at the rate of $3,400 per month from 1 May 2006 until delivery of vacant possessionof the suit premises;
8. The Respondent do pay the Applicant costs of the proceedings summarily assessed at $1,388.50.”

4. The application is directed to the order for possession as well as for payment of rent/mesne-profit of $3,000 per month from 1 July2006, and management fees of $3,400 a month from 1 July 2006.

5. The respondent was the applicant’s tenant in respect of Flat 3BG, Sea Ranch, Lantau Island.

6. It is common ground that the lease has expired at the end of February 2007.

7. The appellant has many complaints about the order but on the application for stay, what I have to consider is whether a stay shouldbe granted.

8. A stay would normally depend on whether the appeal would otherwise be rendered nugatory. Where the judgment is for the paymentof money, a stay would normally be granted only where the applicant satisfies the court, that if the money is paid, there will beno reasonable prospect of its recovery in the event of the appeal succeeding.

9. The applicant’s main complainant is that counterclaim has been dismissed by the judge instead of having the whole proceedingstransferred to the High Court.

10. I would not comment on the merits or lack of merits of the counterclaim. I am satisfied, however, that the respondent’s appealdoes not have a strong prospect of success, and certainly not one which affects the order relating to possession. So far as possessionis concerned, as I have said, the tenancy expired at the end of February, the landlord has not renewed the lease, and the respondentwould have to move out.

11. He, however, asked that even if a stay of execution relating to possession is not granted pending the disposal of the appeal, heshould be given an extension of time until 6 September 2007. In support of that, he has informed me that he, his wife and theirbaby girl had been sick, and that there had been ten days of down time, both because of their illness and because of typhoon.

12. Mr Victor Chiu, who appeared for the applicant, is willing not to oppose a stay until 6 September 2007 provided that the arrearsare paid within 7 days.

13. Mr Kwong is willing to pay the outstanding sum within 10 days.

14. In all the circumstances, I would grant a stay of execution until 6 September 2007 relating to the possession of the suit premises,providing that Mr Kwong makes payment of the arrears within 10 days of today.

15. So far as payment is concerned, Mr Kwong has not contended, quite rightly so in my view, that if the monies were to be paid to theapplicant, there is a real risk of his not being able to recover the money should he succeed in the appeal. That being the case,there is no reason for a stay of execution.

16. So far as the costs of the application is concerned, I think in all the circumstances, I will make it costs of this applicationas costs in the appeal, such costs to be taxed if not agreed.

17. At Mr Chiu’s request, I would clarify that should the respondent fail to pay the arrears within 10 days, the plaintiff shall beentitled to proceed with the writ of possession.

(Robert Tang)

The Respondent, in person, present.

Mr Victor K H Chiu, instructed by Messrs Lo, Chan & Leung, for the Applicant.