Siu Yem-chung v. Hing Yip Construction Co
Read the full judgment text of CACV 35/1979 on BabelCite. This Court of Appeal judgment was delivered on 17 January 1980.
1. This is an appeal against an order for summary judgment against the Appellant. The judgment was entered upon the pleadings. The Particulars of Claim showed that the Plaintiff was the landlord of premises in Shatin under a written agreement dated 15th January 1977 made with the Defendant as tenant. The tenancy was for a term of two years from 1st February 1977. The tenancy agreement contained the usual provisions prohibiting transfer, assigning or subletting and a proviso for reentry. It was a
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CACV000035/1979
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 17 January 1980 ----------------- JUDGMENT ----------------- Huggins, J .A.: 1. This is an appeal against an order for summary judgment against the Appellant. The judgment was entered upon the pleadings. The Particulars of Claim showed that the Plaintiff was the landlord of premises in Shatin under a written agreement dated 15th January 1977 made with the Defendant as tenant. The tenancy was for a term of two years from 1st February 1977. The tenancy agreement contained the usual provisions prohibiting transfer, assigning or subletting and a proviso for reentry. It was alleged that the Defendant had, in breach of the provisions of the tenancy agreement, transferred, assigned or sublet part of the premises on or about 1st November 1978. 2. The defence was that in 1961 - that is, some sixteen years before the head tenancy began - the parties had been in relation of landlord and tenant and that the Defendant had sublet to two brothers. The Defence alleged that what happened in 1978 was that one of those brothers assigned his sub-tenancy to another brother. 3. It was upon those facts that the learned judge decided the case. There was no allegation of any subletting other than on or about 1st November 1978. The judge appears to have acceded to the argument advanced on behalf of the Plaintiff that where a sub-tenant assigns his sub-tenancy the effect is to create a new sub-tenancy and that such creation of a new sub-tenancy here constituted a breach of the covenant against assignment or subletting. With great respect to counsel and to the learned judge I cannot accept that as good law. It might be different where there is a surrender of a sub-tenancy and the granting of a new sub-tenancy by the Defendant, but that is not the case here, nor is there any other allegation of subletting, whether or not there could have been. 4. For those reasons it seems to me that there was clearly an arguable defence and this appeal ought to be allowed. Cons, J.: 5. I have come to the same conclusion and wish to add nothing. Yang, J.: 6. I also agree. 17th January 1980. |