Po Wai Ching and Lee Hon Wing v. H E Pfeifer

CACV000087/1983

1983, No. 87 (civil)

Landlord and Tenant. Issue and service of a writ claiming forfeiture and possession constitutes forfeiture of tenancy. After service no contract subsists which is susceptible of repudiation. Proceedings issued in the District Court in excess of jurisdiction are not void as such.

On the 27th August 1982 the plaintiff landlord issued proceedings in the Victoria District Court claiming forfeiture of the defendant tenant's lease; possession; arrears of rent and mesne profits. The tenant gave up possession on the 27th October following after which the landlord discontinued those proceedings. He commenced a fresh action in the High Court claiming damages for the tenant's breach of the terms of the lease. Held: -

BETWEEN:

Coram: Yang & Barker, JJ.A. & Kempster, J.

Date: 21st October, 1983.

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JUDGMENT

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Kempster, J. -

1. This is an appeal from a judgment of Hooper, J. delivered on 24th May this year whereby he dismissed a claim by the plaintiffs for arrears of rent from 1st September to .27th October, 1982, and for damages for breach of. a tenancy agreement, damages which were not particularized in the pleading.

2. Mr. LEE, who appeared for the plaintiffs, has drawn our attention to an interesting case decided in Canada called Highway Properties Ltd. v. Kelly Douglas & Co. Ltd.⁽¹⁾ which suggests that the previously held view that a breach of a tenancy agreement could not be treated as a repudiation and accepted as such, so as to allow an untrammelled claim for damages for breach of contract may be wrong. That Canadian case was mentioned with approval by the House of Lords in National Carriers Ltd. v. Panlapina (Northern) Ltd.⁽²⁾ As a ,;result the authority of Total Oil Great Britain Ltd. v. Thompson Garages Ltd.⁽³⁾ to the contrary effect is, to say the least, open to question.

3. However, the present case does not offer this court the opportunity of considering the application of such an interesting point of law for reasons clearly pointed out by the learned Judge. As he explained, the plaintiffs had elected to forfeit the defendant's lease as from 27th August, 1982, by the issue and service of a prior writ in the Victoria District Court claiming forfeiture for non-payment of rent, arrears and mesne profits. As from that date no contract subsisted that could be repudiated. A fortiori no repudiation could be accepted. The fact that the plaintiffs wrongly relied on section 126 of the Landlord & Tenant (Consolidation) Ordinance (Cap. 7) rather than the forfeiture provision of the lease itself in no way detracts from the election thereby made as pointed out by Lord Denning, M.R. in Canes Property Co. Ltd. v. K.L. Television Ltd.⁽⁴⁾ at p.442 -

"..... where a tenant has been guilty of a breach which has not been waived, then, in order to effect a forfeiture, the lessor must actually re-enter, or do what is equivalent to re-entry, namely, issue and serve a writ for possession on the lessee or assignee, as the case may be ........ The lease is determined as from the date on which the writ is served. The rent is payable up to the date of service. Mesne profits are payable after the date of service."

4. And as the learned judge found, until the time when the defendant gave vacant possession of the property on 27th October while the District Court action was still on foot.

5. Now, turning to the grounds of appeal, it is contended first, that the learned Judge erred in failing to apply section 52(3) of the Landlord and Tenant (Consolidation) Ordinance. That ground of appeal goes at once because there was an express term and provision for forfeiture, so that section cannot apply.

6. The second ground was that the learned judge erred in holding that the tenancy had been forfeited on the 27th August. It is said the judge ought to have held that the writ in the District Court action was completely null and void in that the court had no jurisdiction to adjudicate on premises with a rateable value exceeding $15,000.

7. Presuming the figures are correct, the contention is in any event bad. Proceedings in excess of jurisdiction are not void as such as section 39 of the District Court Ordinance (Cap. 336) makes clear.

8. Then it is said that the learned judge erred in departing form the pleadings and holding that the defendant was a trespasser after 27th August, 1982. That the defendant was a trespasser after that date followed as night follows day from the finding that the tenancy had come to an end on that date. It was an unchallengeable conclusion of law.

"Three, the leaned judge erred in law in failing to hold that the common law doctrine of repudiation applies to leases", and then the authorities which I have already mentioned are set out. I can only repeat that it did not fall for Hooper, J. and does not fall for us, on the facts of this case, to make a decision fundamentally affecting the law as between landlord and tenant.

9. Lastly, it said that on the facts of the case the learned judge ought to have held that the repudiation of the defendant occurred by the latest on the 26th October, 1982 and that the plaintiffs are entitled to damages to be assessed by the learned trial judge.

10. Mr. Lee, himself, is unable really to put a date on the time when, as he submits generally, the failure of the defendant to pay rent was accepted by the plaintiffs as a repudiation otherwise than by electing to forfeit with consequential limitation of damages recoverable. It certainly was not accepted by 1st November, 1982; because or. that day the plaintiffs' solicitors wrote -

11. Really, it is difficult to see how the learned judge can be criticized in that context. So quite apart from the fact that we are here concerned with a multiplicity of proceedings and defective pleadings I find that there is no substance to this. appeal and would dismiss it.

Yang, J.A.:

12. I too would dismiss the appeal.

Barker, J.A.:

13. I agree, and there is nothing I can usefully add.

(1)    [1971] 17 D.L.R. 710.

(2)    [1981] 2 W.L.R. 45.

(3)    [1972] 1 Q.B. 318.

(4)    [1970] 2 Q.B. 433.

Representation:

S .    Lee (W.S. Lo & Co.) for Plaintiffs/Appellants.

A.    Allman-Brown (Joseph C.T. Lee & Co.) for Defendant/Respondent.