Fung Kwok Man v. Lee Kuen
Read the full judgment text of CACV 29/1975 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against the judgment making an order for possession of a shop. This shop was let to the Appellant for four years from 2nd September 1970. The Appellant had previously been tenant of the same premises and his evidence was that he had lived in the premises previously, while carrying on his business. The new lease, however, contained an express clause that the premises were not to be used "other than for domestic purposes under the name of Mongkok Provisions Company". The Appel
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CACV000029/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.29 OF 1975 (On appeal from O.J. 1985/74) -----------------
----------------- Coram: Huggins & McMullin, JJ. Date of Judgment: 29th July 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is an appeal against the judgment making an order for possession of a shop. This shop was let to the Appellant for four years from 2nd September 1970. The Appellant had previously been tenant of the same premises and his evidence was that he had lived in the premises previously, while carrying on his business. The new lease, however, contained an express clause that the premises were not to be used "other than for domestic purposes under the name of Mongkok Provisions Company". The Appellant said that he continued to live in the premises in breach of that term and that several members of his family lived there. That may well be true - the Respondent called evidence which supported the fact that one member of the family was living there - but the issue in this case is not whether the Respondent was entitled to possession for a breach of the terms of the contract. For the purposes of this case I am prepared to assume that the landlord knew very well that the Appellant was living there with his family, so that if he had complained of a breach of covenant he might have been met with a plea of waiver. The issue in this case is whether the premises were protected under the statute, and for that purpose the question was whether the primary user of these premises was domestic or non-domestic. 2. The judge had evidence that the building was allowed to be occupied only for business purposes. He had the lease, to which I have already referred, and he had oral evidence from the Respondent and his wife. The Appellant also gave evidence but his evidence was in fact an implication that he had no defence: it was a plea for more time. His case before us has been that about a month before the lease expired the landlord suggested a new agreement and he says that but for that approach by the landlord he would have looked for other premises. I repeat: the approach was made a month before the end of the term. The term expired last year, nearly twelve months ago. The Appellant knew very well within the month that no new agreement was being reached and it was therefore his duty to move out. The judge had the advantage of a certificate from the Department of Rating and Valuation which said that the primary user was non-domestic. There was nothing in the oral evidence which compelled him to come to a contrary conclusion and in my view the judgment of the court below is unassailable. McMullin, J.: I agree. 29th July 1975. Representation: |