Lei Sau Fong v. Tai Wai Ying

Case No.CACV 95/1990

Court

Court of Appeal

Date13 Mar 1991

Judge—

Case Document

100%Judiciary

CACV000095/1990

IN THE COURT OF APPEAL	1990 No. 95
	(Civil)

HEADNOTE

The landlord served a Form CR105 on the tenant. The question arose as to whether an estoppel, as to the period withm which the tenant could apply to the Lanes Tribunal for the grant of a new tenancy, was raised against the landlord by an explanatory note placed on the back of the Form CR105 by the Commissioner of Rating and Valuation. The form itself contained, on its race, a clear, unequivocal and correct statement of the period fixed by the Ordinance for the making of the application. Held : that the form on its face could have left no one in doubt that an application had to be made within two months and that the confusing note on its back did not give rise to any estoppel.

IN THE COURT OF APPEAL	1990 No. 95
	(Civil)

BETWEEN

LEI SAU FONG

Appellant

AND

TAI WAI YING

Respondent

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Coram: Hon. Fuad, V.-P., Clough & Power, JJ.A.

Date of Hearing: 13 February 1991

Date of Judgment handed down: 13 March 1991

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JUDGMENT

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Power, J.A. :

1. This is the judgment of the Court.

2. On 16th March 1987, the applicant TAI Wai-ying ("the tenant") entered into a tenancy agreement with the respondent LEI Sau-fong ("the landlord") in relation to domestic premises at Flat B8, 40-42 Hing Fat Street, 14th floor, Hong Kong, for a term of three years.

3. On 30th August 1989, the landlord served a form CR101 on the tenant. This is a gazetted form made pursuant to s.119(1) of the Landlord arid Tenant Ordinance (Cap. 7) which states that, subject to s.119N which allows for the interim continuation of tenancies pending determination by the Tribunal, the landlord may terminate the tenancy by a notice given to the tenant in the specified form stating the date of termination. The completed form states that the tenant is notified that the tenancy will be terminated on 17/3/90, i.e. the date of the termination of the tenancy agreement. In compliance with s.119(4), it also states that the tenant is required to notify the landlord in writing within two months after the giving of the notice, whether or not she will be willing to give up possession on the specified date, and it informs the tenant that the landlord would not oppose an application to the Lands Tribunal for a grant of a new tenancy. By s.119(2), such a notice is required to be given not more than seven or less than six months before the date of termination. This notice was given within time.

4. The tenant on 30th October 1989, served a form CR102 on the landlord notifying her that the tenant would not give up possession at the date of termination and would apply to the Lands Tribunal for a grant of a new tenancy.

5. Pursuant to s.119D(3)(a)(ii), the landlord served on the tenant a form CR105 requiring him to make an application to the Lands Tribunal for the grant of a new tenancy. This form has given rise to the present difficulties. The section under which it is served is plain insofar as it states that no application under s.117(1) for continuation of tenancy shall be entertained if it is made more than two months after the giving of a notice by the landlord to the tenant requiring the tenant to make an application. The words of this section are plainly echoed in the words on the face of the form. The form, as gazetted, contains no other indications as to time. However, to the gazetted form, explanatory notes have been added; presumably by the Commissioner of Rating and Valuation whose office issues the forms. Note 2. reads as follows:

"2. The tenant must within 2 months after the giving of this Notice apply to the Lands Tribunal for the grant of a new tenancy, but in any event, such application must be made:-

	(a)	not later than the date of termination specified in the Notice of Termination of Tenancy (Form CR101) by the landlord, or
	(b)	before the commencement date of the new tenancy specified in the Request for a New Tenancy (Form CR103), as the case may be. "

The two months notice expired on 21st January 1990, but the tenant's form 13 application for a new tenancy was not made until 19th February 1990. While this application was after the expiration of the two month deadline it was before the date of the expiration of the tenancy agreement which fell on 17th March 1990.

6. On 6th March 1990, the tenant applied for a hearing date and the application was set down to be heard on 8th June 1990. On 9th May 1990, the landlord's solicitors filed a Notice to Act and a Summons asking that certain preliminary points of law be decided. This was set down for hearing on 24th May 1990. On that day the tenant appeared in person and the landlord appeared by her solicitors.

7. At the outset the Tribunal (Presiding Officer, Judge Cruden) ruled:

"that the issue raised in the summons, should properly be determined as part of the substantive application for a new tenancy. As both parties were present, the possibility existed of avoiding a multiplicity of hearings by determining that issue on the hearing of the applicant's application for a new tenancy forthwith. The unrepresented applicant had with her all relevant documents. Neither party objected to that procedure and the hearing accordingly proceeded on that basis."

No point is taken before us as to the propriety of proceeding in this way.

8. The tenant gave evidence in which she said:

"I read notes on Form CR105. I filed Form 13 before the date mentioned in Form CR101."

The Tribunal held as follows:

"The complication in this case arose from the, fact that the respondent elected to serve a Form CR105 dated 21.11.89 on the applicant. The Form CR105 actually served, gave the applicant notice of certain matters and also had various notes printed on its reverse side. On the face of Form CR105, the applicant was required to apply for a new tenancy within two months of the giving of that notice. The two month period expired on 21st January 1990 which was a little under 1 month before the application for a new tenancy was actually filed. The Court of Appeal, by a majority, in Ram Isardas Mahtani v. Wong Kwok Tai CA No. 156/89 decided that where such a two months notice is not complied with the Tribunal has no jurisdiction to entertain an application filed thereafter.

If the facts in this case were the same as the facts in Ram Isardas Mahtani v. Wong Kwok Tai, then clearly the Tribunal would have had no jurisdiction and the applicant would not have succeeded. In that event the Tribunal would, in accordance with its practice, have dismissed the substantive application for a new tenancy. It would not have made an order in favour of the respondent on the respondent's summons. However, the very different factual situation in this application, was that the applicant stated that she had read several notes endorsed in the reverse side of the respondent's Form CR105. These notes included the following:

'2.

Upon receipt of this Notice, the tenant should within 2 months apply to the Lands Tribunal for the grant of a new tenancy, but in any event, such application should be made :-

(a)

not later than the date specified in the Notice of Termination of Tenancy by Landlord (Form CR101) or,'

	So on the evidence, the applicant had read those notes on the respondent's final notice - Form CR105 - which informed her that she should apply for a new tenancy within two months but in any event no later than the date specified in Form CR101. It was undisputed that she made such application nearly 1 month before the date specified in Form CR101. On the evidence I found that the respondent allowed the applicant a longer period to apply, than the time limits imposed by Section 119D (3)(a)(ii). The remaining question was whether in these circumstances, the contents of the respondent's Form CR105, estopped her from asserting that the applicant was out of time.
	The Tribunal recently in Chiu Ming Kiang v. William Lee Shung L.T. 4806/89 considered the question of waiver and estoppel. I confirm that in relation to Part II of the English Landlord and Tenant Act 1954, on which Hong Kong's Part IV is based, English Courts have held that waiver and estoppel can arise. In view of the close similarity of the Hong Kong to the English legislation, the principles of stare decisis enunciated by the Privy Council in de Lasala v. de Lasala (1980) AC 546 and Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. (1987) HKLR 1041 apply to the consideration Hong Kong courts should give to English judgments on Part II of the Landlord and Tenant Act. I hold that waiver and estoppel may, as a matter of law, arise in Hong Kong in respect of Part IV statutory notices. In Chiu Ming Kiang v. William Lee Shun I found, on the facts, that waiver and estoppel did not arise.
	In the present case it seemed to me that, prima facie, the respondent was estopped from asserting that her Form CR105 required the applicant to apply for a new tenancy other than before the date she prescribed in Form CR101. After the respondent's solicitor had cross-examined the applicant he made submissions as to time. At that stage I outlined what appeared to be the prima facie position and expressly asked him if he had any submissions to make on estoppel or waiver. The respondent's solicitor replied that he had no submissions to make on those matters.
	After considering the whole of the evidence I found that the applicant had applied on 19th February 1990 for a new tenancy which was before the final date imposed by the respondent in Form CR105, namely 17th March 1990. On these findings of fact, I held that the respondent was estopped from asserting that the applicant was required to have applied for a new tenancy within 2 months of 21st November 1989. The application for the new tenancy could therefore, to employ Lord Reid's construction in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] AC 850, be "entertained" by the Tribunal. A new tenancy for 2 years from 18th March 1990 was therefore granted."

9. The landlord appealed. When the appeal came on for hearing on 20th December 1990 before the Hohourable Chief Justice, Mayo and Boknary JJ., the court ordered that an amicus curiae be appointed. The matter came before us with Mr. Shum representing the appellant landlord and Mr. Alfred Chan acting as amicus curiae. The tenant did not appear. Mr. Shum submitted that there was nothing in the form CR105 that would give rise to an estoppel.

10. Citing Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 (H.L.) Mr. Chan submitted that if a party makes a late application and the other party waives the right to object, then the court would have jurisdiction, but conceded that any waiver must be unequivocal and that the facts in this case do not give rise to either an estoppel or a waiver.

11. As appears from the above citation from his judgment, the presiding Officer was satisfied that the basic question for his determination was whether the evidence established "that the respondent allowed the applicant a longer period to apply than the time limits imposed by s.119D(3)(a)(ii)". Having determined that question in the affirmative he went on to consider "the remaining question" which was "whether in these circumstances, the contents of the respondent's form CR105, estopped her from asserting that the applicant was out of time."

12. We are satisfies that it is more appropriate that these two questions be looked at together. A succinct and, in our respectful opinion, wholly correct statement of the law governing estoppel can be found in Halsbury's Laws of England, 4th Ed., Vol. 16 at paragraph 1595:

"To found an estoppel a representation must be clear and unambinguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels, that they 'must be certain to every intent'."

The question is then whether the form CR105 was so clear and unambiguous that, when the tenant looked at it as a whole, she would reasonably have understood that she had until the 17th March 1990 to file her application.

13. The form on its face could have left no one in any doubt than an application had to be made within two months of the giving of the notice. Assuming, but not deciding, that the landlord and not the Commissioner of Rating and Valuation is to be regarded as responsible for the notes printed on the back of the prescribed form, the real matter for determination is, therefore, the effect properly to be ascribed to the words:

"The tenant must within 2 months after the giving of this Notice apply to the Lands Tribunal for the grant of a new tenancy, but, in any event, such application must be made:-

(a)

not later than the date of determination specified in the Notice of Termination of Tenancy by the landlord (Form CR101).''

While it is true that this advice could have been more clearly worded, we are in no doubt that the meaning of the note in question is to allow the tenant only two months to apply to the Tribunal for a new tenancy. Furthermore we are quite unpersuaded that it could, clearly and unambiguously, have conveyed to any reasonable person that the application could be made at any time before the commencement date of the new tenancy. The most that could be said on the tenant's behalf is that the notice might have left a reasonable person in some doubt as to the date which did have application and put such a person on inquiry as to whether or not it might be possible that a longer time than the two months specified on the face thereof might apply. Such circumstances do not, however, allow a tenant to resolve the doubt in the way most favourable to himself. In our judgment, the Presiding Officer was therefore wrong to treat the relevant notice as capable of giving rise to an estoppel.

14. Accordingly, it is not necessary for us to canvass the question as to whether, as a matter of law, a representation in a Form CR105 extending the time fixed by section 119D(3)(a)(ii) of the Ordinance, is capable of giving rise to an estoppel. There having been neither waiver nor estoppel, we allow the appeal and make an order nisi that the tenant is to pay the landlord's costs of the appeal. We add the recommendation that the notes currently printed at the back of Form CR105 receive the immediate reconsideration of the Commissioner of Rating and Valuation and that, in the meantime, it would be prudent for landlords to delete them before serving the notice.

Representation:

Mr. Erik Shum (instructed by Messrs. Deacons) for the Appellant.

Respondent in person (absent).

Mr. Alfred H.H. Chan (amicus curiae).