Teen Energy Ltd v. Axewood Ltd

HCA003808/2002

HCA 3808/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3808/2002

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Coram: Mr Recorder E Chan SC in Chambers

Date of Hearing: 28 January 2003

Date of Judgment: 28 January 2003

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JUDGMENT

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1.This is an appeal by the defendant, the tenant of the premises known as Flats B, C and D on the 17th floor of Aik San Factory Building, 14 Westlands Road, Quarry Bay.

2.By a specially endorsed writ issued on 8 October 2002, the plaintiff, the landlord of the said premises, claimed vacant possession of the premises and also mesne profit from 1 October 2002 to the date when vacant possession is delivered up.

3.Acknowledgement of service was filed on 21 October 2002. By a summons dated 24 October 2002, the plaintiff sought summary judgment for both possession and mesne profits. The application was supported by an affirmation of Madam Ho Shun Wah and the affirmation complied with the requirement of Order 14.

4.On 19 December 2002, Master de Souza entered final judgment for possession and interim judgment for mesne profit to be assessed. The Master also granted stay of execution for one month. The defendant now appeals against the decision of the Master.

5.As the matter is now argued before me, in effect, the defendant only takes one point, and that is in relation to the requirement of the Notice of Termination under Part 5 of the Landlord and Tenant Consolidation Ordinance.

6.It is common ground in this case that under the tenancy agreement between the parties, the landlord is entitled, under the terms of the tenancy, to give six months' notice to terminate the tenancy if the landlord has resolved to redevelop the building.

7.On 5 March 2002, the landlord actually resolved that the building should be demolished and should be redeveloped. On 13 March 2002, the landlord served on the defendant a Notice of Termination. It is common ground that this Notice of Termination makes reference to clause 10.1 of the tenancy agreement under which the landlord is entitled to terminate the tenancy in the event of deciding or resolving to redevelop the premises.

8.However, it is equally clear from the notice served that the notice made no reference whatsoever to section 122 of the Landlord and Tenant Consolidation Ordinance, nor any reference to Part 5 of the same Ordinance.

9.What the notice said is, "The tenancy agreement and your tenancy thereby created will be terminated with effect from 30 September 2002 ('the termination date'). You are required to deliver vacant possession of the property to the landlord, or to whom the landlord may appoint, on or before the termination date."

10.It is the contention of the plaintiff that this notice served on 13 March 2002 is sufficient to serve both the purposes of the notice under the tenancy agreement and also the Notice of Termination required by section 122 of Part 5 of the Ordinance.

11.The defendant's contention before me is that the notice, because of its complete lack of any reference to Part 5 of the Ordinance or section 122 of the Ordinance and, furthermore, because the notice only made reference to the contractual term under the tenancy, is not a good notice under Part 5 of the Ordinance. Accordingly, the defendant's contention is that the defendant's tenancy had not been validly terminated because of the protection given to it by Part 5 of the Ordinance.

12.Mr Merry very fairly conceded that before 1979 a Notice of Termination under this particular section of the Ordinance need not be in any particular form and needs not make any reference to Part 5 or its equivalent. It is, however, contended that because of the legislative amendment by the addition of a definition section in 1979 and such amendment coming into effect in 1984, there is somehow a change in the requirement of a Notice of Termination under section 122.

13.The contention is this, that because of the definition in section 120A, that "Notice of Termination means a notice served under section 122(1)" and because when that definition section came into effect there was also other sections coming into effect, namely, section 124A, section 124B, section 124C on the same date, somehow, the Legislature intended that the Notice of Termination required under section 122(1) should make some reference to the legislation or to the relevant section.

14.I am unable to accept such argument. In my view, if the Legislature intended that there must be some particular requirement on the form or the contents of the notice under section 122(1), the Legislature would have made it clear. In fact, if one refers to other parts of the same Ordinance, where the Legislature intended that certain particular form of notice of terminating tenancies is required, the Legislature will make it clear. An example of such instance is section 119 of the same Ordinance.

15.In my view, the purpose of adding a definition of Notice of Termination to this part of the Ordinance is that because of the introduction of 124A and 124B into the Ordinance where there are also references to Notice of Termination the new sections, in particular, in section 124B, the Legislature thinks it more appropriate to have a definition for this term so that, say, for instance, when one is referring to the same phrase, "Notice of Termination", in section 124B, one would be able to at once understand the term to mean a Notice of Termination served or purported to be served under section 122(1) of the Ordinance.

16.In any case, I am not satisfied that it is even arguable that because of the introduction of the definition section the Legislature intended to change the well-established case law on the requirement of Notice of Termination under section 122(1) or its equivalent in earlier legislation.

17.In the circumstances, my decision is that this appeal should be dismissed and the respondent, the plaintiff, is to have the costs of this appeal. I will direct that costs be taxed on party and party basis, if not agreed, and I will also give a certificate for counsel.

Representation:

Mr Jat Sew Tong, SC, instructed by Messrs Johnson, Stokes & Master, for the Plaintiff

Mr Malcolm Merry, instructed by Messrs Sit, Fung, Kwong & Shum, for the Defendant