Wong Kau-chuen v. Leung Chow-yuen
Read the full judgment text of HCA 1187/1973 on BabelCite. This High Court CFI judgment.
1. This is an appeal against the Registrar's order to strike out the defence and give summary to the plaintiff.
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HCA001187/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1187 OF 1973 -----------------
----------------- Coram: Li, J. Date of Judgment: 20th November, 1973 at 10.00 a.m. Present: Mr. H.C. Lee (P.C. Woo and Co.) for Plaintiff Defendant in person ----------------- JUDGMENT ----------------- 1. This is an appeal against the Registrar's order to strike out the defence and give summary to the plaintiff. 2. The facts of this case are as follows: The plaintiff is a landlord and the defendant appellant is the tenant under a Tenancy Agreement for three years commencing on the 16th April, 1970 and expiring on the 15th April, 1973. On the 21st December last year the plaintiff gave notice to the defendant to quit the premises on the expiration of the Tenancy Agreement on the 15th April, 1973. Such notice was served on the defendant on the 21st December, 1972. The defendant refused to leave the premises. As a result, a writ of summons for possession was issued on the 8th May, 1973. The defence was filed on the 21st May, 1973 claiming protection from the Ordinance cited by the defendant as the Rent Increase Ordinance (Revised), which I assume he meant either the Tenancy (Prolonged Duration) Ordinance, Chapter 276 or the Rent Increases (Domestic Premises) Ordinance, Chapter 338, both of which are now merged and consolidated in the Tenancy (Consolidation) Ordinance, Chapter 7. Pausing at this stage, it is appropriate to observe that the defence, as such, is not a valid defence because the Tenancy Agreement granted a lease of three years which is a fixed term. As such, it is excluded from protection of the Ordinance, Chapter 7. To that extent, the Learned Registrar was correct when he ordered the defence to be struck out. The defendants appeals against that order. Such appeal, as I understand at the procedure, is to be treated as a fresh hearing. 3. Before me, the defendant refers to some newspapers which quotes a certain ordinance which came into force on the 7th June this year. With the assistance of learned counsel for the plaintiff and some research, I find that it is entitled The Domestic Premises (Tenure and Rent) (Temporary Provisions) Ordinance, 1973 which came into force on the 7th June this year. Section 3 of the 1973 Ordinance provides that:
Mr. Li for the plaintiff contends that despite the provisions in section 3 of the 1973 Ordinance, this tenancy is not protected because it is not an existing tenancy at the commencement of the 1973 Ordinance. He pointed out that the tenancy was, in fact, terminated on the 15th April, 1973 when the notice to quit expired and particularly when a writ for possession was issued. He cites a passage from Hill & Redman on Landlord and Tenants to the effect that once there is a demonstration of intention to determine the lease, the tenancy must have construed as having been terminated on the expiration of the notice. However, in good tradition of the Bar, he very properly and fairly directs my attention to the case of REMON v. City of London Real Property Company, Limited reported in 1921, 1 K.B.49. He tries to distinguish the present case from that case. In that case a two-room was let in quarterly tenancy, to the plaintiff by the defendant company. The notice to quit was served prior to the coming into operation of the Increase of Rent Act 1920. The tenant, however, refused to quit and the landlord retook possession a few days or one day prior to the coming into force of the Increase of Rent Act 1920. Section 15, subsection 1 of the Act provides that:
Replying in the protection of this Act which did not come into force when the landlord retook possession, the plaintiff in that case, sued the landlord to recover possession of the premises. The Court of Appeal held that the tenants had a cause of action and gave judgment to the plaintiff. Lord Justice Scrutton traced the whole history of the rent restrictions in England and came to the conclusion that it was the intention of the Legislature to give protection and to perpetuate such protection by enacting the Increase of Rent Act 1920. Then he went on to say:
4. When comparing the wording of the 1920 Act with our 1973 Ordinance, I find that the term 'tenant' and 'sub-tenant' as defined in section 2(b) of the 1973 Ordinance provides that:
The wording of this definition is exceedingly similar to that of the wording of subsection 1 in section 15 of the 1920 Act. The history of our tenancy law in recent years is similar to that in England in the 1920. 5. Although the defence as filed - has claimed nothing of the protection of the 1973 Act but it is quite clear that the defendant, in this case, claims that he is still in possession. As such, he might - I am not saying that they will - have a defence. As I have mentioned, this case is treated as a fresh hearing. At this stage I am only concerned with a prima facie defence. Accordingly, while I am not entirely disagreeing with the Learned Registrar, I feel that the proper course for me to take is to grant leave to defend. However, this appeal might not have been necessary but for the way the defendants filed the defence as such. For this reason, I make no order as to costs.
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