Yu Tung Bik v. Metro Dodwell Motors Ltd
Read the full judgment text of HCMP 148/1975 on BabelCite. This High Court CFI judgment.
1. This action was brought by originating summons for a declaration and for an injunction, arrears of rent or, alternatively, damages for breach of contract. The point in issue is a very short one but it is of the greatest practical importance and I have therefore adjourned it into open court for delivery of judgment.
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HCMP000148/1975 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) MISCELLANEOUS PROCEEDINGS NO. 148 OF 1975 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 30th May 1975. ----------------- JUDGMENT ----------------- 1. This action was brought by originating summons for a declaration and for an injunction, arrears of rent or, alternatively, damages for breach of contract. The point in issue is a very short one but it is of the greatest practical importance and I have therefore adjourned it into open court for delivery of judgment. 2. The case turns upon the interpretation of the words "delivered up" in s. 53(1) of the Landlord and Tenant (Consolidation) Ordinance. That section appears in Part II of the Ordinance, which is concerned with the tenure of domestic premises. There is no dispute that the premises to which the action relates are domestic premises or that Part II of the Ordinance applies to them. The material portion of s. 53(1) is:
3. The facts are as follows. By an agreement in writing dated 17th May 1973 the Plaintiff let a flat to the Defendants for a term of three years from 8th June 1973. For reasons which need not concern us the Defendants wished to terminate the tenancy before the expiration of the contractual term. They vacated the flat and sent the keys to the Plaintiff. Their contention is that by so doing they "delivered up" possession within the meaning of s. 53 and thereby brought their tenancy to an end. 4. The solicitor for the Defendants concedes that if this contention is right the Legislature has established an extraordinary situation, but, supported by a favourable precedent in the District Court, he submits that the contention should be upheld. I turn at once to that earlier decision. In Kam Wa-kui v. Scully Action No. 4327 of 1974 in the Victoria District Court the plaintiff orally agreed to let a flat to the defendant for a term of two years. The defendant asserted that less than two weeks after the date fixed for the commencement of the tenancy there had been an oral agreement to rescind and she relied upon s. 53(1) as a defence to a claim for rent. At the hearing, as a result of an observation from the Bench to the effect that a mere agreement to rescind would not be sufficient to terminate a tenancy under that subsection, because "vacant possession" meant delivery of actual physical possession, by a tenant to a landlord, of a tenement relieved not only of his own physical presence but emptied also of all his goods and chattels (Capital Land Investment Co., Ltd. v. Se Mong Kai 1973 H.K.L.R. 371), the defendant amended to allege delivery up of vacant possession. Judge Hooper said:
The learned judge must have thought the words of the sub-section were too plain to admit of any other interpretation, but in the event he found as a fact that there had been no intimation to the Plaintiff that the premises had been vacated. 5. Before me Mr. Chang has argued that the words of the sub-section do not plainly mean what the learned judge held them to mean and that they are in fact susceptible of a different interpretation. He says that that alternative interpretation produces results far less startling than those contended for by the Defendants and he relies upon the principles that the Legislature should be taken not to have altered the Common Law unless such an intention is clear and that where one possible interpretation produces injustice and another equally possible interpretation does not the latter is to be preferred. 6. The question comes down to this, can there be a "delivery up" of possession without an acceptance of possession or a wrongful refusal to accept possession? Mr. Chang submits that there cannot. If there can, then a tenant under a tenancy to which Part II of the Ordinance applies can divest himself of all further contractual obligations at will, provided only that he vacates the premises and gives notice to the landlord of such vacation. Mr. Chang points to s. 122, which is the comparable provision under Part V of the Ordinance. That reads in part:
I agree with Mr. Chang that sub-s. (2) was inserted ex abundanti cautela and does not have any effect other than to avoid any doubt as to the purpose of sub-s. (1). However, he goes on to contrast the words "give up" in sub-s. (1) with the words "delivered up" in s. 53 and suggests that they impose a less onerous obligation upon the tenant. In my view a tenant cannot "give up" possession unless possession is transferred to someone else and possession cannot be transferred to the landlord unless the landlord accepts it: to "give up" possession is not the same as to abandon possession but rather is it the same as to surrender possession and it is well established that there can be no surrender of a tenancy without acceptance of possession by the landlord. If the difference between the phrases used in ss. 53 and 122 has any significance I do net think it assists the Plaintiff, but, on the contrary, it must assist the Defendants. However, for my part I cannot believe that the difference of phraseology is anything more than a historical accident, which passed unnoticed when the consolidation of the law of landlord and tenant was effected. To hold that there can be a "delivery up" of possession to the landlord within the meaning of s. 53 where there is no duty on the landlord to accept possession would interfere with the Common Law contractual rights of the parties in a way which would have required much clearer language than is to be found in this statute. It was submitted on behalf of the Defendants that the purpose of the section was to provide protection to the tenant and to prevent his being expelled from the premises. I accept that, but it seems to me that the interpretation for which they contend would not merely protect the tenant but would place the landlord at the mercy of the tenant. 7. Reference was also made to s. 74A, the material part of which reads:
I do not think this can help me to determine the true interpretation of s.53 and, since I am satisfied that the tenancy still subsists, it is unnecessary to consider whether s.74A would have assisted the Plaintiff in establishing a right to damages had I come to a different conclusion upon the first point. 8. There must be judgment for the Plaintiff but I will hear argument as to the precise terms of the order. 30th May 1975. Representation: |