SPRING ENOUGH LTD v. LIMBU CHANDRAKALA

CACV 34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 34 OF 2004

(ON APPEAL FROM LDPE 1532 OF 2003)

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

Background

1. This matter arose out of a claim brought by the applicant (the landlord) in the Lands Tribunal for arrears of rent for certain ground floor premises in Yuen Long, New Territories, let to the respondent (the tenant) and for possession of the premises for non-payment of rent.

2. At the hearing before the Lands Tribunal, the main issue raised by the tenant was that the rental was $14,000 instead of $15,000 per month as claimed by the landlord. The tenant's case was that when the tenancy agreement was signed, the rental was left blank, ie, no rental was written on the agreement. This, the landlord denied. The landlord's case was that during the period when SARS was prevalent in Hong Kong, it had agreed to reduce the agree rental of $15,000 by $1,000 only for a period of three months.

3. After hearing the parties, Mr Lam, a member of Lands Tribunal, ordered the payment of arrears of rental for the period between 8 August 2003 and 7 September 2003 in the sum of $10,000 and thereafter at $15,000 per month. He also made an order for possession of the premises and granted relief against forfeiture under section 21F of the High Court Ordinance, Cap 4, on condition of the full payment of all the arrears. That decision was made on 20 January 2004.

4. On 9 February 2004, the tenant took out a notice of appeal against the decision.

5. On 11 March 2004, Yuen JA granted conditional stay of execution of the order for possession of the premises.

6. Against Yuen JA's order the tenant appealed. On 31 March 2004, this Court (Yeung JA and Lam J) dismissed the appeal.

7. On 15 April 2004, the tenant filed a summons and an affirmation to seek further stay of execution, and that was refused by Yuen JA on 20 April 2004.

8. On 5 May 2004, this Court (Yeung JA and Lam J) refused to grant the tenant leave to appeal against its judgment of 31 March 2004 to the Court of Final Appeal.

9. In the meantime, on 24 April 2004, the landlord took out a summons, mainly to seek the execution of the order for possession without further delay, and at the same time, to seek security for costs of the tenant's appeal.

10. On 29 April 2004, Yeung JA ordered the tenant to pay $3,000 into court within 7 days as security for the landlord's costs of the appeal, failing which the tenant's appeal against the decision dated 20 January 2004 of the Lands Tribunal be dismissed without further order, and that in the meantime, the appeal be stayed. On 10 May 2004, the tenant paid $3,000 into court.

The applications

11. On the same day of 29 April 2004, the tenant filed a notice of appeal against Yeung JA's order. Two grounds were mentioned in the notice of appeal, namely,

(1) From Yuen Long to Central, a round trip fare is only $42. The landlord should not have been allowed to claim such a large amount of $3,000.

(2) The tenant had made a part of the payment and the matter was to be resolved soon.

12. This is the application before us.

13. On 17 June 2004, the order for possession of the premises was executed by the court bailiff. On the same day, the landlord wrote to the court to apply for the release of the $3,000 in its favour.

14. At the hearing before us on 29 June 2004, both parties were absent, but the tenant's husband, Mr Elthaf, appeared on her behalf. Mr Elthaf told us that the appeal was still afoot and was fixed to be heard on 27 June 2004.

The security

15. When Yeung JA made the order for security for costs in the sum of $3,000 on 29 April 2004, he did not appear to have given any reason. While it may be correct for the tenant to say that a round trip fare from Yuen Long to Central only costs $42, we are quite sure that the security for the costs of appeal does not only relate to the transportation charges. The security would inevitably relate to the estimated costs of the appeal. Such costs would include the transportation charges as well as the time and effort estimated to be spent by the landlord in preparing for the appeal and for appearing before the court to oppose the appeal. While the history of the court proceedings between the parties demonstrates that both have not been legally represented and will unlikely to be legally represented on the appeal, we are not disposed to say that sum of $3,000 is too high as to justify our interfering with the exercise of discretion by Yeung JA. This disposes of ground (1) raised by the tenant.

16. On ground (2), Mr Elthaf told us that the tenant had already paid to the landlord all the arrears of rental up to 20 June 2004 and the tenant was in financial difficulty. He also mentioned the dispute between the parties as to the deposit for the tenancy. We do not see the relevance of ground (2) or any of the matters mentioned by Mr Elthaf, none of which has any bearing on the reasonableness or otherwise of the amount of the security.

The release of the $3,000

17. We have not taken into account the fact that possession of the premises has been obtained by the landlord on 17 June 2004 as a consideration affecting the security for costs ordered by Yeung JA. However, the fact that possession of the premises has been recovered by the landlord does not justify his applying for the release of the $3,000, because the appeal against the Lands Tribunal decision is still pending and has not been disposed of. The landlord's application to release the $3,000 to it is, to say the least, premature and must be dismissed.

Conclusion

18. In the premises, the tenant's appeal against Yeung JA order is dismissed. The application of the landlord for the release of the $3,000 in its favour is also dismissed. We make no order as the costs in respect of both matters.

Representation:

The applicant, Spring Enough Limited, absent

The respondent, Limbu Chandrakala, absent, but appeared by her husband, Mr Elthaf Chaudhry Muhammad, in person

CACV 34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 34 OF 2004

(ON APPEAL FROM NO. LDPE 1532 OF 2003)

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DECISION

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Hon Yeung JA (giving decision of the Court):

1. On 31 March 2004, we dismissed the Respondent's appeal against the order of Yuen JA who ordered the Respondent to pay into court arrears of rent of $75,000 and to continue to pay monthly rent of $15,000 to the Applicant as condition for stay of execution of the Lands Tribunal's order of 20 January 2004.

2. The Respondent now seeks leave to appeal to the Court of Final Appeal.

3. Section 22 of the Hong Kong Court of Final Appeal Ordinance provides:

(1) An appeal shall lie to the Court-

(a)	as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more;
(b)	at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision;.."

4. The decision we made on 31 March 2004 is not a final judgment and the matter in dispute does not amount to $1,000,000. The Respondent must therefore demonstrate that the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5. The Respondent has not identified the question of great general or public importance nor can we see any. There is no other reason for the appeal to be submitted to the Court of Final Appeal.

6. There is no basis whatsoever for us to grant the Respondent leave to appeal to the Court of Final Appeal.

7. The application must be dismissed and we so order.

Representation:

Applicant: In person (Represented by Ho Tak Shing, Ho Wan Shan, Joanna).

Respondent: In person (Represented by Elthaf, Chaudhry Muhammad).

CACV34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

civil APPEAL NO. 34 OF 2004

(ON APPEAL FROM NO. LDPE 1532 of 2003)

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JUDGMENT

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 Hon Yeung JA (giving judgment of the Court):

1.  The applicant, Spring Enough Ltd sought possession of the premises at Shop 15, Hop Yik Commercial Centre, 33 Hop Choi Street, Yuen Long, NT (the suit premises) against the respondent- Limbu Chandrakala in LDPE 1532 of 2003 on the basis of non-payment of rent.

2.  The respondent resisted the application, alleging that when she signed the tenancy agreement, the rental was not filled in and the agreed monthly rent was in fact $14,000 per month and not $15,000. The respondent did not, however, dispute the non-payment of any rent since September 2003.

3.  Member Lam in the Lands Tribunal rejected the respondent’s onlycontention and found that the agreed monthly rent was $15,000.

4.  On 20 January 2004, the Lands Tribunal granted an order in favour of the applicant for possession of the suit premises.

5.  The Lands Tribunal also ordered the respondent to pay arrears of rent at $15,000 per month from September 2003 until delivery of vacant possession.

6.  Relief against forfeiture was granted to the respondent conditional upon the payment of the arrears of rent within 14 days from the date of the order.

7.  The respondent, having failed to comply with the condition, filed a notice of appeal on 9 February 2004, seeking more time to pay the arrears of rent at a reduced rate of $14,000 per month.

8.  On 25 February 2004, another member of the Lands Tribunal,  Mr. Lo rejected the respondent’s application for a stay of the order of the Lands Tribunal until the disposal of the appeal.

9.  On 27 February 2004, the respondent applied to the Court of Appeal for a stay. The application was listed before Yuen JA on 11 March 2004.

10.  A temporary stay until 11 March 2004 in favour of the respondent was granted on 8 March 2004.

11.  On 11 March 2004, Yuen JA concluded that the respondent did not have a good chance of succeeding on appeal. However, to avoid the risks of the respondent being turned out of the suit premises, thus rendering the appeal nugatory, she granted the respondent’s stay application conditional upon her paying into court $75,000 by 25 March 2004, paying $15,000 to the applicant on 15 March 2004 and paying the applicant the monthly rent of $15,000 on 15^th of each month.

12.  The respondent did not meet any of the conditions. She now seeks to appeal against Yuen JA’s order. 

13.  The respondent, through her husband, proposes to repay the arrears of rent by the end of May 2004. The suggestion is that her financial ability does not permit her to immediately settle all the arrears of rent.

14.  The respondent’s appeal has no chance of success. She had been in arrears of the rent for a long time. Whether to grant her indulgence of a stay pending appeal is a matter of discretion. In the exercise of her discretion, Yuen JA had already adopted a most sympathetic approach to the respondent.

15.  The respondent has failed to comply with the conditions laid down by Yuen JA and the applicant cannot reasonably be expected to agree to any further indulgence. There is no clear indication that the respondent will be able to pay up the arrears of rent by the end of May 2004.

16.  We see no reason to depart from Yuen JA’s order at all. There is no valid basis for any further indulgence to be granted to the respondent. Her appeal is dismissed.

17.  In the light of the background of the case and the fact that the applicant is not properly represented today, we make no order as to costs.