To Ying Fat v. 陳偉昌

DCCJ 659/2021

[2022] HKDC 502

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 659 OF 2021

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Before:  Deputy District Judge B Mak in Chambers (Open to Public)

Date of Hearing:  13 May 2022

Date of Decision:  30 May 2022

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DECISION

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Introduction

1.This is the plaintiff’s appeal against the Master’s decision dated 17 December 2021 setting aside the default judgment entered on 4 August 2021.

2.At the hearing, the defendant did not appear.

3.The Notice of Appeal, the plaintiff’s Bundle of Appeal Index, the plaintiff’s skeleton submission and the plaintiff’s list of authorities etc were served on the defendant by ordinary post to his usual and last known address with covering letters reminding him the date of hearing of this appeal.

4.I am satisfied that the defendant has been given sufficient notice of this appeal and he has chosen not to appear.

Legal principles on appeal against Master’s decision

5.An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time: 58/1/2 Hong Kong Civil Procedure 2022 Vol 1.

Regular judgment

6.The Amended writ of summons was served on the defendant on 6 May 2021. The defendant filed an amended Acknowledgment of Service on 28 May 2021. Judgment in default of defence was entered on 4 August 2021.

7.I am satisfied that the judgment entered was a regular judgment.

Real prospect of success

8.In the case of a judgment that was entered regularly, it is incumbent upon the defendant to show that he has a real prospect of success, and that his case and the evidence adduced in support of it is potentially credible and carries some degree of conviction: see Cheung Man Yuen v Chau Wan Kai Jonas [2019] HKCA 1389

The plaintiff’s case

9.The plaintiff is the registered owner of the Remaining Portion of Lot No 347 in Demarcation District No 87 (“the land”).

10.The land was let to the defendant by a tenancy agreement dated 26 October 2018 for a fixed term of 1 year from 26 October 2018 to 25 October 2019 at the annual rent of $3,500.

11.By a written notice of termination dated 25 September 2019, the plaintiff gave notice and demanded the defendant to vacate and deliver up vacant possession of the land to the plaintiff on 25 October 2019 which the defendant has failed to do so.

The defendant’s affidavit evidence

12.The defendant said that the land was rented by his father in 1972 from the plaintiff’s father for agricultural purpose. His family erected 5 wooden huts thereon to be used as their residence.

13.After the passing of his father in 1980, his mother became the tenant. After his mother was diagnosed with dementia, he took up the tenancy of the land and became the tenant thereof from 2011.

14.The defendant said he had never received any notice of termination nor had he signed any agreement for not renewing the tenancy. The licensed hut belonged to his family. He complained that the wooden hut was broken in on or about 28 December 2020 with properties broken and stolen. 

Discussion

15.Clause 1 of the tenancy agreement between the plaintiff and the defendant dated 26 October 2018 provided that the tenancy was for a fixed term of 1 year from 26 October 2018 to 25 October 2019.

16.Clause 2 of the tenancy agreement provided that:-

“2. … 租約期滿，租客如若繼續租賃或退租，須於壹個月之前以書面通知。（續租則另訂新約方生效力）”[1]

17.The clause is very similar to the clause considered in Wong Yuk Ying v Chan Pui Shan May [2017] 5 HKC 163 (except that there is an additional notice requirement that if the landlord intends to repossess the property, one-month notice has to be given to the tenant in advance) in which the Court of Appeal held that the notice requirement was intended to let the other party know his or her plan with regard to the premises, but it does not have the effect that failing such notice, the tenancy continued despite its termination by effluxion of time.

18.Hence, whether or not the plaintiff has given notice of termination, the tenancy of the defendant would have come to an end on its expiry on 25 October 2019.

19.I do not see any force in the defendant’s allegation that he has not received any notice of termination.

20.The erection of the huts on the land was permitted by the Director of Land by way of a Modification of Tenancy dated 19 September 1984 (“the MOT”) to be used by the defendant’s mother as dwelling, bathroom, kitchen and shade. Whilst those huts were the residence of the defendant’s mother (and her family), the fact remains that the land still belonged to the plaintiff’s father and then the plaintiff. The MOT did not alter the status of the defendant’s mother as the tenant of the land and so was the defendant since 2011.

21.Therefore, the existence of the huts on the land cannot prevent the plaintiff from repossessing the land on termination of the tenancy by effluxion of time.

22.Finally, the complaint of the defendant that the hut had been broken in resulting in loss of property to his sister has nothing to do with the plaintiff’s right to repossess the land. The defendant said that the matter was already reported to the police.

23.By reasons of the aforesaid, I do not think the defendant has raised any defence to the plaintiff’s claim at all, not to mention any real prospect of success.

Conclusion and order

24.Accordingly, I would allow the plaintiff’s appeal and set aside the order of the learned Master, and replace it with the order sought in the Notice of Appeal filed on 7 February 2022.

Costs

25.The plaintiff shall have the costs of this appeal with certificate for counsel.

26.By summary assessment, the defendant shall pay the plaintiff’s costs of this appeal in the sum of $47,101.

Mr Yau Jeff, instructed by K B Chau & Co, for the plaintiff

The defendant was not represented and did not appear