Tang Woon Kai v. Tang Ting Chun
Read the full judgment text of CACV 25/1970 on BabelCite. This Court of Appeal judgment was delivered on 25 November 1970 before Blair-Kerr, Mills-Owens and Huggins, JJ..
Civil law – lease – oral agreement to extend term – Statute of Frauds – part-performance – whether part-performance can be raised for the first time on appeal – 20-year lease of orchard from 1 November 1948 – government requisition of land for army use from July 1949 to June 1958 – alleged oral agreement in March or April 1950 to extend lease by a period equivalent to army occupation (alleged 9 years) – written lease expired by effluxion of time on 31 October 1968 – respondent claimed ejectment and mesne profits at $300 per month – appellant counterclaimed for specific performance of alleged 1950 oral agreement – trial judge held alleged oral agreement unenforceable under Statute of Frauds for lack of memorandum in writing – appellant sought to argue part-performance for the first time on appeal – whether pleadings sufficient to raise part-performance – whether same strictness required in construing District Court pleadings as Supreme Court pleadings – section 33 of District Court (Civil Jurisdiction and Procedure) Ordinance Cap.336 requiring written notice of equitable defence – whether appellate court should allow new point not argued below – exercise of discretion – test from Lord Herschell in The Tasmania and Jessel M.R. in Ex p. Firth, re Cowburn – rule strictly applied – appellant's mere averment of willingness to perform was condition precedent to specific performance, not a plea of part-performance – no facts of part-performance such as payment and acceptance of rent or expenditure on improvements pleaded or proved – respondent's counsel entitled to rely on absence of writing and properly called no evidence – appeal dismissed with costs.
Legal issues: Whether part-performance can be raised for the first time on appeal when not pleaded or argued below · Whether the pleadings in the District Court were sufficient to raise the defence of part-performance
Outcome: Appeal dismissed with costs; the appellant was not permitted to raise the issue of part-performance for the first time on appeal.
Cited by 2 cases
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IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 25 OF 1970 (on Appeal from Victoria District Court Action No. 618 of 1970) -----------------
----------------- Coram: Blair-Kerr, Mills-Owens and Huggins, JJ. Date of Judgment: 25 November 1970 ----------------- JUDGMENT ----------------- Blair-Kerr, J.: 1. The respondent (plaintiff) is the registered manager of an orchard situated near Taipo railway station; and, as such, he is the effective owner. In August 1948, he entered into an agreement with the appellant (defendant) to lease this orchard to the appellant for a period of 20 years as from 1st November 1948, at a rent of $300 per month, for the purpose of carrying on the business of agricultural and animal farming, an amusement park and food catering. Pursuant to the agreement, the appellant entered into possession in November 1948. 2. In July 1949, when the appellant was under detention in Victoria Remand Prison, Government requisitioned the land for the use of the Army, and agreed to pay $1,050 per month therefor. Payments were made to the respondent who duly accounted to the appellant upon the latter's release from detention in January 1950. Thereafter, the appellant was paid by Government the $1,050 per month until June 1958 when the land appears to have been de-requisitioned, and he resumed possession. 3. The appellant had been, over the years, seriously in arrears as regards paying his rent; and, as a result of a dispute between him and the respondent, they met in April 1969, that is to say some 6 months after the 31st October, 1968, the last day of the 20-years term which commenced on 1st November, 1948. The appellant had paid no rent since July 1964; and the respondent handed him a document (Ex.2) which gave details of the "rent" which was owing by the appellant in respect of the period 1st July, 1964 to 31st March, 1969 - 57 months. This amounted to $17,100. 4. The respondent commenced proceedings on 16th January, 1970. He asserted that the term had expired by effluxion of time on 31st October 1968; and he claimed an order for ejectment and mesne profits at the rate of $300 per month from 1st November 1968 until judgment or possession. There was also a claim for $15,600 being 52 months arrears of rent from 1st July, 1964 to 31st October, 1968 at $300/- per month; but the writ was amended by the deletion of this claim before the action came on for trial. 5. The defence, as pleaded, reads thus:-
6. The appellant also counterclaimed for specific performance of the alleged agreement; and, in his counterclaim, he pleaded that he had
7. The respondent filed a Reply in which he denied that there had been any such oral agreement in 1950 to extend the 20-years term; and he pleaded, in the alternative, that, in any event, the alleged agreement was not evidenced by any memorandum in writing sufficient to satisfy the Statute of Frauds; and that it was, therefore, unenforceable. 8. The action came on for trial on 4th June 1970; and, in view of the defence, the Judge ruled that the appellant should begin. He gave evidence in support of the alleged 1950 agreement; and he was cross-examined about the dispute which he had with the respondent in April 1969. The record of his evidence concerning his discussion with the respondent on that occasion reads in part:-
9. Although it is not exactly clear from the record, it appears that by the time the case came on for trial, the appellant had probably paid his arrears of rent up to 31st October 1968. But there is nothing to suggest that he had offered to pay (much less that the respondent had accepted) rent in respect of any period subsequent to that date. 10. The appellant called a witness who said that he had overheard the alleged 1950 conversation; that the appellant had said that he would suffer damage as the Army was using his land; that the respondent had said that he would "compensate" the appellant "for the same period that the Army had used the land" and that the rent would be "as usual". In cross-examination this witness admitted that he did not hear the conversation clearly because he did not pay any particular attention to it. 11. Mr. Liu, who appeared for the respondent, elected to call no evidence. The record of his remarks concerning the appellant's evidence reads:-
Counsel took his stand on the fact that the alleged 1950 agreement was unenforceable because it was not evidenced by any memorandum in writing sufficient to satisfy the Statute of Frauds. Having addressed the Court on the law, Mr. Liu said:-
12. The record of the closing address of Mr. Lawrence Leong, who appeared on behalf of the appellant, reads:-
Judgment was given in favour of the respondent as claimed. We were told that an oral judgment was delivered. After notice of appeal had been filed, the Judge appears to have reduced to writing what he termed "notes of a judgment given in Court on the 4th June 1970". But it is impossible to say how much of this was actually said when judgment was given because in it he deals with the grounds of appeal which were not filed until the following month; clearly, he was looking back on the trial in the light of those grounds. 13. However, in dealing with the evidence of the appellant and his witness, the Judge said:-
He did not mention the April 1969 meeting. 14. An appellate court normally regards itself as bound by findings of fact which depend upon the credibility or otherwise of oral testimony; and, for the purpose of this appeal, the Judge's finding that in 1950 there was an agreement as alleged must be accepted. But, speaking for myself, having regard to the inherent improbability of any such agreement ever having been made and to the nature of the appellant's evidence and that of his witness, it would certainly not have been surprising if the judge had rejected the appellant's allegations. 15. Mr. Bernacchi, who appeared on behalf of the appellant in this court, informed us that the substance of the appeal was contained in the third ground of appeal filed together with the notice of motion, namely that the judge was wrong in holding that there was no part-performance of the 1950 oral agreement for an extension of the 20-years term. 16. It was objected by Mr. Liu (counsel for the respondent) that it was not open to the appellant to take this point on appeal. His objection was founded on two grounds:
17. Section 4 of the Statute of Frauds was repealed and replaced in England by s.40 of the Law of Property Act 1925. In the 1970 Supreme Court Practice at p. 254 opposite marginal reference 18/8/10, there appears the following note:
18. Mr. Bernacchi did not seek to argue otherwise. Pleadings are not required as of course in the District Court. They are only necessary when the court makes an order therefor in which case the rules governing civil procedure in the Supreme Court apply thereto. According to the record of the trial in this case, the judge extended the time for filing the defence and made an order limiting the time within which the Reply and Defence to the counterclaim should be filed. In other words, the parties (who were legally represented) appear to have chosen to file pleadings without any specific order by the court; and whatever might be said in the case of a party appearing in person, there can be no justification for any laxity in pleading if parties are legally represented. But, quite apart from the question of whether the court orders pleadings, s.33 of the District Court (Civil Jurisdiction and Procedure) Ordinance Cap.336 expressly requires a defendant to give written notice of any equitable defence. 19. Mr. Bernacchi's submissions on Mr. Liu's objection, may be summarised thus:-
20. Mr. Bernacchi relied upon a passage from the judgment of Lord Parker in Banbury v. Bank of Montreal (1), which reads:-
And Mr. Bernacchi invited the Court to ask Mr. Liu whether, and if so what, additional evidence he would have called if the question of part-performance had been argued in the court below. 21. We declined to do any such thing. We upheld Mr. Liu's objection and dismissed the appeal with costs, indicating that we would record our reasons for so doing. These may be stated quite shortly. 22. We agree that the matter is one of discretion and that it does not go to jurisdiction. As Lord Herschell said in The Tasmania(2):-
In Ex.p. Firth, re Cowburn (3)Jessel M.R. said:
The learned editors of the Supreme Court Practice (1970) in a note at p.792, say that the rule is strictly applied, and they cite Hickman v. Kent and Romney Marsh Sheepbreeders' Association (4) for the proposition that a party may be debarred from raising a point which was pleaded but deliberately omitted from argument in the court below. 23. I am clearly of the opinion that part-performance was not pleaded by the appellant in this case, and that when the defence and counterclaim was drafted the appellant's legal advisers had no intention of pleading part-performance. The counterclaim was signed by Mr. Lawrence Leong. At this time, no Reply had been filed and counsel could not have known that the respondent was going to plead the Statute of Frauds. But, apart from that, I am satisfied that no lawyer who intended to plead part-performance would have used the phraseology upon which Mr. Bernacchi now places such reliance. If it had been the appellant's intention to anticipate a defence of "no memorandum", one might have expected to have found some reference in the counterclaim to the statute and to have found language such as would have left no doubt in the mind of the respondent, and of the court, that it was part-performance which was being relied upon to take the case out of the operation of the statute. Furthermore, it is customary to allege facts upon which such a plea is to be founded, such as payment and acceptance of rent, expenditure on improvements incurred in the belief that an additional term had been agreed to, and so on. Nothing of that kind was pleaded; and no evidence of such matters was adduced. 24. From an examination of the record of the trial, it is abundantly clear that neither the judge nor counsel for the respondent had any idea that part-performance was being pleaded. No doubt it was because he thought that he had a cast-iron defence to the alleged 1950 oral agreement that Mr. Liu decided to call no evidence. Clearly, it mattered not to him what findings of fact the judge made. But, in order to narrow the issues, before he sat down, he made it clear to the court that his understanding was that part-performance had not been pleaded, and that no evidence had been adduced which might have supported such a plea. 25. If, at that stage of the trial, it had been Mr. Lawrence Leong's understanding that part-performance was being pleaded, surely he would have stood up and made his position clear. Not only did he not do so, he said nothing in his closing address which could possibly be said to indicate that part-performance was being relied upon by him. 26. It is not for this court to speculate on what course Mr. Liu might have adopted if he had been informed by Mr. Lawrence Leong that part-performance was the appellant's defence to the plea of "no memorandum"; and no counsel should be put in the position now of having to cast his mind back to the time of the trial and say what he might, or might not, have done. It is sufficient to say that he might well have fought more vigorously the issue of whether or not there had been an agreement in 1950 to extend the 20-years term. His cross-examination of the appellant might have been very different. The judge would certainly have asked Mr. Lawrence Leong on what evidence he was basing his submission that there had been part-performance; and the judge would certainly have ruled specifically upon that question. 27. At one stage of his submission, Mr. Bernacchi suggested that this court should order a retrial in order to do justice between the parties. We considered that to be against the justice of the case, in the circumstances. An attempt was being made to set up an entirely new case before this court on appeal; and we were not prepared to permit the appellant to do this. 28. For these reasons, the appeal was dismissed with costs.
Representation: Mr. B. Bernacchi, Q.C. & M. Asome (Messrs. S.F. Sun & Co.) for Appellant. Mr. B. Liu (Messrs. David Y.Y. Fung) for Respondent. (1) (1918) A.C. at p.705 (2) (1890) 15 A.C. at p.225 (3) (1882) 19 Ch. Div. p.419 at p.429 (4) (1920) 37 T.L.R. 163 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 25 OF 1970 -----------------
----------------- Coram: Full Court. (Blair-Kerr, Mills-Owens, and Huggins JJ.) Date of Judgment: 25 November 1970 ----------------- JUDGMENT ----------------- Mills-Owens J.: 29. I agree. Not only was part-performance not pleaded, but no foundation of fact therefor appeared in the evidence. What was pleaded was willingness to perform the alleged oral agreement - a condition precedent to the counterclaim for specific performance of that alleged agreement. The evidence of the appellant remaining in possession after the 31st October, 1968 was equally consistent with his having held over on the expiry of the original agreement in writing (vide Wills v. Stradling (1797) 3 Ves. 378; and ef. Miller & Aldworth Ltd. v. Sharp (1899) 1 Ch. 622). Section 33 of the Ordinance (Cap.336) requires express notice in writing of a defence such as part-performance; such a notice was not given, either independently of the pleadings or, as I would agree it may be given, in the pleadings. Counsel for the respondent, having pleaded the Statute of Frauds, was entitled to rely on the absence of any writing to evidence the alleged subsequent oral agreement, in the absence of any rejoinder in avoidance of the application of the Statute. Quite clearly, that influenced his decision to call no evidence. As it seems to me we would, in effect, have been retrying the case if we were to have acceded to the arguments of counsel for the appellant on the appeal, and to have been retrying it on a basis which did not exist, namely a plea of part-performance. If part-performance had been properly raised the basis therefor would, or could, have been properly investigated; to have allowed that to be done on appeal would have amounted to entering upon a re-trial, and on a different basis, at the instance of an appellant who had full opportunity to make such a case in the court below. The appellant must, in my view, be held bound by the course taken by his counsel below.
IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 25 OF 1970 (on Appeal from Victoria District Court Action No. 618 of 1970) -----------------
----------------- Coram: Blair-Kerr, Mills-Owens and Huggins, JJ. ----------------- JUDGMENT ----------------- Huggins, J.: 30. I also agree that the appeal should be dismissed - and for the reasons given by my lords - but I would add this as there seems to have been no reported ruling by this Court on a point which, when I was sitting in the District Court, grew into what Mr. W.S. Gilbert would no doubt have called an "annual blister", namely whether pleadings in the District Court are to be construed with the same strictness as pleadings in the Supreme Court. Mr. Bernacchi has submitted that the same strictness is not required. But what are pleadings for? The answer is to be found in a passage in the speech of Lord Radcliffe in Esso Petroleum Company Limited v. Southport Corporation 1956 A.C. 218, 241 where, referring to further and better particulars of a statement of claim, he said:
This is the object of all pleadings, whatever the tribunal and whether the parties are professionally represented or not, and the question in every case is whether that object has been achieved. Here, I think, it is manifest that the Defence and Counterclaim did not indicate either to the respondent or to the judge that the appellant relied upon part performance as overcoming the requirement of a memorandum in writing. |
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