Polykote Coatings Manufacturing Co Ltd v. Grace Rehabilitation Centre Ltd

HCA 1477/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1477 OF 2013

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REASONS FOR DECISION

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Introduction

1.This is an appeal by the Defendant from Master J Wong’s decision given on 28 July 2014 entering summary judgment under Order 14 against the Defendant.

2.Subsequent to the decision of Master J Wong, the Director of Legal Aid filed into court four memoranda dated 11 November 2014, pursuant to section 15 of the Legal Aid Ordinance, giving notice that four persons who wished to be joined as parties to the present proceedings had made applications for legal aid.  However, at the hearing, Mr Pun, counsel for the Defendant, conceded that legal aid stay be lifted.  Accordingly, I made an order uplifting the stay and the hearing of the appeal proceeded.  At the end of the hearing, I dismissed the Defendant’s appeal with costs to the Plaintiff, but reserved my reasons.  Hereunder are the reasons for my decision.   

The background

3.The Plaintiff and the Defendant were landlord and tenant.  By a provisional tenancy agreement dated 17 April 2007 (the “provisional tenancy agreement”) the Plaintiff’s predecessor in title, Lucky Ford Limited (“Lucky Ford”) let a portion of the first floor of a building (the “said first floor property”) to the Defendant for use as an elderly home for a fixed term of six years commencing on 1 August 2007 and expiring on 31 July 2013.  By a supplemental tenancy agreement signed on 16 May 2007 (the “supplemental agreement”), Lucky Ford let a shop on the ground floor of that building (the “said shop”) to the Defendant for display of advertisement for the same term of six years.  The provisional tenancy agreement and supplemental agreement are collectively referred to as the “Tenancy Agreements”.  The said the first floor property and the said shop are collectively referred to as the “Property”.

4.Clause 3 of the supplemental agreement provides that after the expiration of the Tenancy Agreements, the tenant has an option to renew the lease for another two years, subject to a rent review according to the prevailing market situation.

5.Then, by an assignment dated 17 December 2007, the Plaintiff became the registered owner of the building including the Property.

6.The lease expired on 1 August 2013, but the Defendant continued in possession, without having exercised the option.

7.By a reminder dated 1 August 2013, the Plaintiff demanded payment of outstanding rent for the said first floor property for the period from 15 to 31 July 2013 in the sum of $21,757.26 and another amount which has since been settled.  By a separate reminder of the same date, the Plaintiff demanded payment of outstanding rent for the said shop for the period from 15 February 2012 to 31 July 2013, which was also settled in due course.  The net amount of the Plaintiff’s claim is $21,757.26.

8.On 5 August 2013, the Plaintiff’s solicitors issued a demand letter to the Defendant informing it that as the option had not been exercised, the tenancy duly ended on 31 July 2013 and demanded vacant possession of the Property and payment of arrears of rent.

9.On 8 August 2013, the Defendant’s solicitors wrote to the Plaintiff’s solicitors in purported exercise of the option to renew for another term of two years. 

10.On 22 January 2014, the Plaintiff issued a summons seeking:

(1) final judgment against the Defendant;

(2) delivery of vacant possession of the Property forthwith;

(3) payment of the outstanding rent in the sum of $21,757.26; and

(4) costs of the action and of the application.

11.At the hearing on 28 July 2014, Master J Wong granted the Plaintiff’s application for summary judgment and dismissed the Defendant’s application to re-amend its Amended Defence.  Against that decision, the Defendant now appeals.

Some legal principles applicable to an application for summary judgment

12.The underlying policy of the summary procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in a case in which the defendant clearly has no defence to the plaintiff’s claim.  The legal principles applicable to application for summary judgment under Order 14 are well familiar. 

13.First, the plaintiff has to show that his case comes within the Order by affidavit verifying the facts on which the claim or the part of the claim to which the application relates is based and stating that in the deponent’s belief there is no defence to that claim or part of it or no defence except as to the amount of any damages claimed.  Once that hurdle is passed, the burden, as it were, is shifted to the defendant to satisfy the court why judgment should not be given against him.

14.Second, the defendant may show cause against the plaintiff’s application by raising technical objections, for example, that the case is not within the Order or that the preliminary requirements are not satisfied.  He may also show cause on the merits, for example, that he has a good defence to the claim, that a difficult point of law is involved, or a dispute as to the facts which ought to be tried, or a real dispute as to the amount due which requires the taking of an account to determine, or any other circumstances showing reasonable grounds of a bona fide defence.

15.Third, Order 14 is for clear cases, ie cases in which there is no serious material factual dispute and, if there is a legal issue, then no more than a crisp legal question as well decided summarily as otherwise.  The procedure is entirely inappropriate where the plaintiff’s entitlement to recover any sum is the subject of serious dispute whether of law or fact: Man Earn Ltd v Wing Ting Fong[1].

16.Fourth, unless it is obvious that the defence put forward by the defendant is frivolous and practically moonshine, summary judgment ought not to be applied: Man Earn Ltd v Wing Ting Fong[2].

17.Fifth, when hearing an Order 14 application, the court must not embark on a mini trial on affidavits: Mass International Ltd v Hillis Industries Ltd & Another[3]; Paul Y Management Ltd v Eternal Unity Development Ltd[4];and Hong Kong Civil Procedure 2015[5].

18.Sixth, in an Order 14 application the issue is not whether the defendant’s assertions are to be believed, but whether those assertions are believable: Ng Shou Chun v Hung Chun San[6] and Mass International Ltd v Hillis Industries Ltd & Anor[7].

19.Seventh, if the court has suspicions concerning the plaintiff’s case, the correct course is to give the defendant unconditional leave to defend so that all matters can be ventilated at trial: Billion Silver Development v All Wide Investments Ltd[8].

20.Eighth, where an application to amend the defence is to be heard together in a striking out application, the proper course is to consider the striking out application on the basis of the proposed amended defence.  If the proposed amended defence could survive the striking out application, the application to amend shall be allowed and the striking out application be dismissed.  If it could not, it would be futile to allow the amendment only to have it to be struck out immediately afterwards.  The application to strike out should be allowed and the application to amend be dismissed.  In an appropriate case, it may be necessary to consider any outstanding issues raised in the original defence which is not covered by the proposed amended defence.  Usually this will not be necessary as the pleader must have put forward his best case with the proposed amendment.

The parties’ case

21.The parties were landlord and tenant of a tenancy which expired and the Defendant remained in possession.  There is no dispute that the Plaintiff has satisfied the initial onus of shifting the burden to the defendant to satisfy the court why judgment should not be given against it. 

22.The defences are that the Defendant had exercised the option to renew via its solicitors’ letter of 8 August 2013 (the “option defence”); that it had duly paid all rent (the “due payment defence”); and that the Plaintiff was in breach of the tenancy agreement by placing a signboard in the said shop (the “signboard defence”). 

23.On 24 July 2014, the Defendant applied to re-amend its Amended Defence and added a counterclaim.  It pleaded that the parties reached an agreement in 2010 that the Defendant moved out of the Property to enable works to be carried out in compliance with two orders of the Building Authority and the tenancy period was thus extended for two months to 30 September 2013.  Hence, the option was exercised within the currency of the tenancy (the “extended tenancy defence”).  It also pleaded that the Plaintiff never demanded the Defendant to elect whether to exercise the option (the “no demand defence”).  These two proposed defences were not pursued by the Defendant at the appeal. 

The option defence

24.In respect of the option defence, Ms Poon, counsel for the Plaintiff, submits that it is trite law that: (1) to be valid, the exercise of an option must be made during the currency of the tenancy; (2) the option must be exercised strictly in accordance with its terms; and (3) the notice seeking to exercise the option to renew must be clear and unambiguous. Mr Pun disagrees with the first proposition.  It is common ground that there are no provisions under the Tenancy Agreements specifying how and when the option is to be exercised.  Mr Pun does not dispute the third proposition but argues that the option was validly exercised by the Defendant’s solicitors’ letter of 8 August 2013.

25.According to the chronology, which is not in dispute, the lease expired on 1 August 2013, but the Defendant continued in possession, without having exercised the option.  Then on 5 August 2013, the Plaintiff, through its solicitors, demanded vacant possession of the Property.  It was only on 8 August 2013 that the Defendant’s solicitors wrote to the Plaintiff’s solicitors in purported exercise of the option to renew for another term of two years. 

26.Ms Poon submits that as a matter of law an option may not be exercised after the tenancy which is sought to be renewed has expired.  However, Mr Pun argues that the authority is to the contrary.  He quoted the decision of the Supreme Court of Canada in Guardian Realty Co v John Stark & Co[9] and the decision of the Lands Tribunal in Wong Wan Leung & Others v Director of Lands[10] in support of his proposition. 

27.In Guardian Realty Co v John Stark & Co, the tenancy agreement provided for a monthly tenancy after the expiration of the original term.  It also gave the tenant an option to renew the tenancy for a further term, but did not specify a time within which the option has to be exercised.  At the request of the tenant, the landlord made and paid for alterations to the premises during the last few months of the expiring term.  A few days after the expiry of the tenancy, the landlord met the tenant and intimated that the tenant did not intend to renew the tenancy.  The tenant instantly expressed his intention to exercise the option which he followed up by a letter reiterating the same and a cheque for a month’s rent at the renewal rate specified in the option.  The Supreme Court of Canada held that the tenant was entitled to exercise the option even though the original term had expired.

28.In Wong Wan Leung & Others v Director of Lands, HH Judge Lok, as he then was, adopted the decision in Guardian Realty Co v John Stark & Co and said that the principle was best summarized in the case of Guardian Realty Co.  He held that where no time was specified for exercise of the option, the right of renewal continues so long as the relationship of landlord and tenant subsists between the parties.

29.Mr Pun argues that the facts of the present case are similar to those of Guardian Realty.  There is no time limitation for exercising the option to renew in the Tenancy Agreement and the option was exercised after the lease expired.  Ms Poon argues that the two cases are distinguishable in that in Guardian Realty there was a provision in the tenancy agreement for a monthly tenancy after the expiration of the original term and that the tenant promptly paid rent under the renewed term.  In my view whether the tenant continued as a monthly tenant or as a tenant at will is neither here nor there.  While prompt payment of rent at the renewal rate was relevant as to the conduct of the tenant, it is irrelevant as far as the decision on the point of law whether an option is exercisable after expiration of the tenancy was concerned. 

30.While the Canadian Supreme Court’s decision certainly meets the justice of the case, it is not without doubt.  If the tenancy agreement does not contain a clause limiting the time when the option may be exercised, the question of when it may be exercised or whether it may be exercised after the original tenancy expired is a matter of the presumed intention of the parties.  It is a question of construction of the tenancy agreement.  In the total absence of any fact on which any contrary inference could be drawn, I would think the only irresistible inference of the parties’ intention is that the option just falls away together with the original tenancy. A similar sentiment was expressed by Mignault J in Guardian Realty Co where he said:

“With some doubt, I concur in the judgment of my brother Anglin dismissing the appeal. Independently of the authorities cited by him which, I think conclude the matter, it would seem reasonable that an option to renew a lease should be exercised while the lease is still current, and not, as in this case, several days after it had come to an end. It is true that the lessees had remained in possession, but there was a clause in the lease stating that if they did so with the consent of the lessor they should be deemed monthly tenants. Now they say that having remained in possession with the consent of the lessor, they can exercise their option for a renewal terms and are not to be deemed monthly tenants. I bow to the authorities allowing them to do so, but I could not help feeling some doubt.”

As suggested by Mignault J, the fact that the tenancy continued as a monthly tenancy pursuant to the express provisions in original tenancy agreement could not entitle the tenants to exercise the option and not to be deemed monthly tenants.  A fortiori, where the tenant continued only as a tenant at will as in the present case.  I am not bound by the decision of the Supreme Court of Canada or the decision of the Lands Tribunal and, with respect, do not feel uncomfortable departing from those decisions. 

31.I find as a matter of law that where the option agreement does not contain any provision limiting the time when it may be exercised, the question of when it may be exercised or whether it may be exercised after the original tenancy expired has to be resolved on the basis of what is the presumed intention of the parties.  It is a question of construction of the tenancy agreement.  The burden of proving due exercise of the option rests on the party asserting it.  In the total absence of any fact on which any contrary inference of the parties’ intention could be drawn, the only irresistible inference is that the parties’ intention is that the option just falls away together with the original tenancy.  In the present case, there are no facts on which inference of a contrary intention could be drawn.  Accordingly, I find on the facts of the present case the option is not exercisable after the tenancy expired.

32.But, assuming that the option was exercisable even after the expiry of the tenancy, the tenant in exercising the option must strictly observe the terms thereof; and a notice seeking to exercise an option to renew must be clear and unambiguous.  Ms Poon argues that the Defendant’s solicitors’ letter of 8 August 2013 did not amount to an effective exercise of the option as it was not clear and unambiguous.

33.In Bess Fashion Management Co Ltd v Star Play Development Ltd & Another[11], Ma J, as he then was, laid down the following approach in deciding whether an option to renew a tenancy had been exercised:

“21. The exercise of options has been the subject of discussion of many recent decisions at the highest level. The fundamental question is of course : has the option been validly exercised?

22. To answer this question, the following principles must be borne in mind :

(1) The first step is to examine the relevant option agreement to see whether as a matter of contract, the parties have agreed on a specific form or method by which the option is to be exercised. If the parties have agreed that the option is to be exercised in accordance with specific procedures, then these procedures must be followed in order for the option to be validly exercised : cf. Mannai Investment Co. Ltd v. Eagle Star Life Assurance Co. Ltd [1997] AC 749, at 747D‑E per Lord Steyn, 774A‑B per Lord Hoffmann. This situation, therefore, involves the parties having agreed a “set formula” as it were for the exercise of the option.

(2) Where, however, as in the present case, the parties have not agreed on specific procedures to be followed for the exercise of the option, it will then be a matter of construction of the relevant notice in order to determine whether an option has been validly exercised.

(3) The construction of a notice is, like other document, to be carried out objectively : see Mannai at 767G‑H per Lord Steyn; Kou Lau Ru Ling v. Tse Sui Luen [2002] HKC 644, at 651C‑E per Ribeiro JA.

(4) A legitimate aid (indeed a requisite factor) in arriving at the true meaning of a document is to have regard to the “relevant contextual scene” or “factual matrix”. In other words, in construing a document, the court must necessarily place itself in the position of the recipient of the document to see what he would have reasonably (i.e. objectively) understood the document to mean. In doing so, the court must, in this I stress objective exercise, impute to the recipient a knowledge of the relevant context which would include all relevant contractual terms and the relevant circumstances surrounding the document in question. See here : Mannai at 767G‑768C per Lord Steyn; Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896, at 912‑3 per Lord Hoffmann; Jumbo King Ltd v. Faithful Properties Ltd (1999) 2 HKCFAR 279, at 296E‑F per Lord Hoffmann.

(5) The ultimate object in construing a notice seeking to exercise an option (apart of course from the “set formula” situation I have referred to above) is to determine whether the notice unambiguously conveys to the reasonable recipient (with knowledge of the relevant context and the relevant contractual terms) the sender’s decision to exercise the option : see Kou Lau Ru Ling at 653G‑H.

(6) It follows then that where a notice is ambiguous, it will not have the effect of a valid exercise of the option.”

34.Applying that approach, the first step is to examine the supplemental agreement to see if there is any contractual provision specifying the method by which the option is to be exercised.  Clause 3 of the supplemental agreement reads:

“… After the expiration of the Tenancy Agreement, the Tenant has an option to renew the lease for another two years, subject to a rent review, according to the prevailing market situation.”

It is worth noting that none of the terms of the tenancy to be renewed by exercise of the option under this clause shall be changed, except for the provision for rent.

35.Apart from clause 3, there is no other contractual provision governing the exercise of the option.  It will then be a matter of examining the conduct of the parties and the contemporaneous correspondence to determine if the option has been validly exercised.  In construing the correspondence, the court shall place itself in the position of the recipient of the correspondence with knowledge of all the surrounding circumstances to see what he would have reasonably understood the correspondence to mean: Mannai Investment Co. Ltd v. Eagle Star Life Assurance Co. Ltd[12]; Investors Compensation Scheme Ltd v West Bromwich Building Society[13]; Jumbo King Ltd v Faithful Properties Ltd[14].

36.The tenancy expired on 31 July 2013.  There is no contractual provision converting the tenancy thereafter into a tenancy on month to month term.  The Defendant did nothing prior to its expiration which could be construed as having exercised the option.  It simply stayed on.  That must be on the basis of a tenancy at will which may be determined at any time.  Then the Plaintiff demanded vacant possession by letter dated 5 August 2013.  It was only then that the first thing the Defendant did in relation to exercise of the option was to cause its solicitors to issue the letter of 8 August 2013. The relevant part of that letter reads:

“… Referring to your letter dated 5^th August 2013 to our client, we are instructed that our client has intention to exercise their option to renew the tenancy of the Property for a further two (2) years. Due to our client’s overlook of the above, they have not informed your client of the said option in time and we sincerely hope your client can understand our client’s situation and accept our client’s explanation and then grant another fresh tenancy of the Property to our client. Our client shall at all times have intention and sincerity to lease the Property for 2 years from 1^st August 2013.

Accordingly, kindly please let us have your client’s proposed terms of the renewed tenancy for our client’s consideration. …”

(Emphasis underlined)

37.This letter should be construed against the above factual matrix.  In particular, it was a serious correspondence written by solicitors in response to an earlier letter, also written by solicitors, demanding vacant possession.  It is expected that the language used would be precise.  It is worth noting that in that light, the Defendant’s solicitors used the word “intention” repeatedly, stating that the Defendant “has intention to exercise the option” and “[has] intention … to lease the Property”.  The implied meaning must be that that intention was still to be put into action. Then, the Defendant’s solicitors invited the Plaintiff to “proposed terms of the renewed tenancy for [their] client’s consideration”.  The use of the word “terms” in plural is significant.  It cannot be construed as meaning solely rent, but all the important terms of a tenancy agreement, including rent, duration of the tenancy and other conditions etc.  As stated above, under clause 3, in exercising the option to renew the tenancy, none of the terms of the renewed tenancy may be changed, except for the provision for rent.  

38.On the face, the letter of 8 August 2013 was only a statement of intention to exercise an option and not an unequivocal expression of exercise of an option.  I also bear in mind the very unlikely possibility that even solicitors might be imprecise with their choice of words and used the word “intention” meaning something more and the word “terms” meaning something less.  However, the above construction is confirmed by the last sentence of the letter quoted above when the Defendant’s solicitors invited the Plaintiff to propose terms of the renewed tenancy for the Defendant’s consideration.  The message conveyed by this letter was that while the Defendant intended or wished to continue the tenancy, it would only do so on such new terms to be negotiated and agreeable to the Defendant and it was waiting for the Plaintiff’s proposals.  It was not an unconditional acceptance of the existing terms save for an increase in rent.  In inviting the Plaintiff to propose new terms for the Defendant’s consideration, the Defendant’s solicitors clearly had in mind a new tenancy and not a renewal on similar terms of the one that expired.  What the Defendant did was to initiate a negotiation for tenancy on new terms.  It was hanging onto a tenancy at will and inviting proposal by the landlord of the terms of a new tenancy for its consideration.  It would enter into a new tenancy if the terms were reasonable or met its approval. If not, it would just hang onto the tenancy at will or walk out altogether.  There was no fixed term tenancy which the Plaintiff could enforce against the Defendant.  I find, by no reading of the Defendant’s solicitors’ letter of 8 August 2013, could it be construed as an exercise of an option to renew a pre-existing tenancy. 

39.I was referred to two authorities of this court by Ms Poon which lend support to my construction of the letter of 8 August 2013.  In Tai Hing Estates Limited v Lam Shu Yuk[15], the tenancy agreement gave the tenant an option to renew the tenancy at a predetermined rent.  In a letter in which the tenant claimed it had exercised the option to renew, the tenant proposed a lower rental and a rent free period of three months.  Deputy High Court Judge Gill held that the purported exercise of an option by proposing a new rent at lower rate was not a valid exercise of the option.

40.Similarly, in Bess Fashion v Star Play, the option clause provided among other terms that the rent under the renewed tenancy would be market rate to be determined by agreement or by an independent surveyor.  In the purported exercise of the option, the tenants requested the landlord to “draft up the new tenancy proposals as soon as possible and inform [them] of the progress of the matter as [their] company also wishes … to renew its tenancy … on reasonable terms”. That was precisely what the Defendant’s solicitors wrote in their letter of 8 August 2013.  Ma J, as he then was, held that that was not effective exercise of the option. 

41.In conclusion, I find that the option under the Tenancy Agreements may not be exercised after the tenancy expired.  But, even if it may be exercised, the letter of 8 August 2013 was not effective in exercising the option as it was not clear or unambiguous.  The Defendant has no defence to the claim for vacant possession of the Property.

The due payment defence

42.The Plaintiff’s case is that the Defendant was in arrears of rent for the said first floor property for the period from 15 to 31 July 2013 and for the said shop for the period from 1 to 31 July 2013.  The Defendant produced its bank statement recording a payment by cheque number 022659 for a sum of $39,675 which was cleared on 30 July 2013 as evidence of payment of the alleged arrears of rent.  The Plaintiff says that the payment was for rent for the period from 15 June 2013 to 14 July 2013 and not for the whole of July 2013.

43.There is no dispute that under the Tenancy Agreements, the tenancy month commenced on the first day of each month since 1 August 2007 while Lucky Ford was the landlord.  The gist of the parties’ dispute is whether somehow the tenancy month was changed from the first day of the month to the last day as it originally was with Lucky Ford as the landlord to the fifteenth day of the month to the fourteenth day of the following month since the Plaintiff took over sometime since or after 17 December 2007. 

44.Mr Pun argues that under the agreement for sale and purchase of the Property, there was an express provision as to apportionment of rental income from the Property between Lucky Ford and the Plaintiff and to be paid to the Plaintiff on completion.  Hence, rent had all along been payable in advance in respect of rental period commencing on the first day of the month.  The Plaintiff’s case is that despite what was provided in the sale and purchase agreement, there was actually no apportionment between Lucky Ford and the Plaintiff; and since the Plaintiff took over the tenancy, the tenancy month was changed to commence on the fifteenth day of the month to the fourteenth day of the following month.

45.The Plaintiff produced the debit notes issued by the Plaintiff to the Defendant which clearly stated that the rent due was for the period from the fifteenth day of each month to the fourteenth day of the following month.  These are contemporaneous records.  At no time during the majority balance of the six year tenancy under the Plaintiff did the Defendant ever protest about the tenancy month as stated on the debit notes.  The reminder issued by the Plaintiff on 1 August 2013 also bore the same tenancy month as set out in the debit notes.  The consistency of the Plaintiff’s conduct and the total lack of protest by the Defendant during this almost six year period suggest that the Defendant’s case is incredible.  I therefore draw as the only reasonable inference that sometime since the Plaintiff became landlord on 17 December 2007, the tenancy month was changed to commence on the fifteenth day of the month to the fourteenth day of the following month and the Defendant is in arrears of rent in the amount as claimed.  The Defendant has no valid defence to this claim.

The signboard defence

46.The Defendant complained about the Plaintiff fixing a signboard at the said shop.  The Plaintiff’s case is that the signboard was not fixed at the said shop.  In Yue Tung Ching Kee Company Limited v Dragon Ford Holdings Limited[16], the tenant claimed that the landlord was in breach of the tenant’s right to quiet enjoyment, the promise to erect an advertisement board, and the promise to waive rent during the period of the delay in construction.  Master J Wong held that even if the claim was established, it could not operate as an arguable defence in law to refuse to pay rent.  This issue was not pursued at the hearing and is deemed abandoned.  In any event, as the authority shows, this defence has no prospect of success.

The extended tenancy defence

47.This defence was not pursued at the appeal and is deemed abandoned.  The short answer to this defence is that it falls along with my finding on the option defence.  Even if the tenancy had been extended, the option has not been validly exercised.  The tenancy would expire all the same by the expiry of the extended time.

The election defence

48.This defence was also not pursued at the appeal.  It is obviously frivolous and vexatious.  There is no express or implied duty under the Tenancy Agreements on the Plaintiff to demand election.  Whether to exercise the option was a matter for the Defendant alone.

Conclusion

49.The proposed defences under the proposed draft re-amended defence were not pursued at the appeal and are deemed abandoned.  In any event, those defences are frivolous and vexatious and have no chance of success.  Hence, the application to amend was rightly dismissed.

50.For the reasons as stated above, all the other defences are bound to fail.  The tenancy having expired and not validly renewed, the Defendant has no defence to the Plaintiff’s claim for vacant possession.  The Defendant has also failed to show a credible defence to the claim for outstanding rent.  The master was correct in entering judgment for the Plaintiff and in making the order he made.  Accordingly, I uphold the master’s decision and dismiss the Defendant’s appeal with costs to the Plaintiff and certificate for counsel. The costs are to be taxed, if not agreed.

Ms Debora Poon, instructed by Messrs Joseph C T Lee & Co, for the Plaintiff

Mr Chase Pun, instructed by Messrs Mike So, Joseph Lau & Co, for the Defendant