Tai Seng Bank Ltd v. Wong Hoi Lai and Others

CACV000050/1967

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 50 OF 1967

(On appeal from O.J. Action No.1195 of 1962)

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Coram: Mills-Owens and Huggins JJ.

Date of Judgment: 26 March 1968

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JUDGMENT

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1. I agree that the appeal must be allowed. The respondent bank's claim was laid in trespass, and intentionally so as its case clearly was that the appellant, throughout, was a trespasser. The appellant succeeded in establishing his defence that he was, and throughout had been, a tenant. It was clearly impossible, in the state of the pleadings and having regard to the nature of the contest, to award the respondent a sum for arrears of rent in lieu of damages for trespass. The appellant was, therefore, a successful defendant, no matter that he might owe rent to the respondent. There was no basis for departure from the ordinary rule that costs follow the event. Even if the respondent had sought and been granted leave at the trial to amend his pleadings so as to substitute a claim for rent, it would, no doubt, have been on terms as to costs (see Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd.⁽¹⁾).

2. The appeal is therefore allowed, the judgment for arrears of rent being set aside, and it is ordered that the respondent bank pay the costs of the appellant both here and in the court below. Taxation in accordance with Legal Aid Rules.

Representation:

Benjamin Liu (Lau, Chan & Ko) for appellant.

Respondent not appearing.

(1) (1951) 1 All E.R. 973.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.50 OF 1967

(On Appeal from Original Jurisdiction Action No.1195 of 1962)

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Coram: Mills-Owens & Huggins, JJ.

Date of Judgment: 26 March 1968

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JUDGMENT

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Huggins, J. :

3. The respondents sued the appellant and three others for possession and mesne profits. It is not necessary for the purposes of this appeal to go into the facts but it will suffice to say that the learned judge dismissed the claim in trespass on the ground that the appellant was the lawful tenant of the respondents. That ruling has not been questioned on the appeal and I say no more about it. The important sentence in the judgment for our purposes is this:

"Since there can be no order for possession the claim must be treated as one for rent rather than for mesne profits".

No amendment of the pleadings was asked for or made and the judge went on to enter judgment against the appellant for arrears of rent which are not disputed Had that been all it is doubtful whether this appeal would have been brought, but in the event the judge made no order for costs in favour of the appellant and it is this which is the real complaint now made on behalf of the appellant.

4. Unfortunately there is no verbatim note of what transpired after judgment and it is not even clear from the record before us that counsel asked the learned judge for costs. We are told from the Bar that he did and that the application was opposed by Mr. Lee (counsel then appearing for the respondents) on the ground that the claim for mesne profits had been treated as a claim for rent and the appellant had been unsuccessful in defending himself against it. Again, we are told that it was upon this ground that the judge made no order for costs in favour of the appellant. It would certainly have been more satisfactory, in view of the fact that the respondents have not appeared before us, if we had had a note from the judge himself setting out the ground of the decision now under appeal but the submission is that, whatever the ground of the decision, there is no ground upon which a refusal of costs can be justified.

5. It is right to mention that in his closing address at the trial Mr. Lee did contend that his clients were "entitled to mesne profits or standard rent" and that "if you are satisfied there was waiver which binds (the respondents) then it necessarily follows that we are entitled to arrears of rent". He relied upon a prayer for "other relief" as being sufficient to cover arrears of rent. Counsel for the appellant in reply emphasised that no cause of action other than trespass had been included but said that the appellant was "willing and prepared to pay rent". It was in these circumstances that the learned judge thought that justice would be done if he entered judgment for the arrears of rent and there can be no doubt that such an order would avoid the possibility of a further action by the respondents against the appellant for such arrears. However, it is clear that counsel for the appellant took in the court below the point that no claim for rent had been pleaded and we must decide whether it is a valid one.

6. I believe it is true to say that the practice of claiming general relief, i.e. further or other relief as the nature of the case may require, originated on the Chancery side: at Common Law the rules of pleading were more strict. Today in Hong Kong we are no longer affected by any difference of practice between Equity and the Common Law and it is always unnecessary to apply for further or other relief because s.9(g) of the Supreme Court Ordinance requires the court to grant "all such remedies whatsoever as any of the parties ... may appear to be entitled to ...... so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings .... avoided." The court will not, however, grant relief unless it is supported by the facto alleged in the pleading of the claimant and is not inconsistent with that relief which is expressly asked for; Cargill v. Bower⁽¹⁾. In the present case, as it seems to me, these conditions were not satisfied and therefore, at least in the absence of consent by both parties (and as at present advised I would not think it wrong to make a consent order in such circumstances), the order ought not to have been made.

7. I turn then to the direction relating to costs. I think we must accept counsel's statement that he did make application for costs, that the argument which followed took the course I have already indicated and, on the assumption that counsel has correctly understood the grounds of the learned judge's decision, that costs were refused because the respondents had obtained a judgment for arrears of rent. Even if an eleventh hour amendment had been allowed by consent so that a judgment for payment of arrears of rent would have been justified, that would not have altered the fact that the case was fought throughout on the basis of a claim in trespass, and upon that basis the appellant was wholly successful. We are told that arrears of rent had been tendered from time to time and whether that be true or not the fact remains that the appellant never had the opportunity to plead tender and to pay the (undisputed) arrears into court. In such circumstances I think it would be wrong to regard the judgment for arrears of rent in the respondents' favour as sufficient justification for refusing the costs of successfully defending the claim in trespass. Nor on the papers before us can I find any other ground justifying refusal of costs to the appellant.

8. I would therefore allow the appeal, set aside the judgment for arrears of rent in favour of the respondents and order the respondents to pay the costs of the appellant both here and in the court below.

26th March, 1968.

Representation:

Benjamin Liu (Lau, Chan & Ko) for appellant.

Respondent not appearing.

(1) (1878) 10 Ch. D. 502