Chow Sau-po v. Madam Chan Sau-min
Read the full judgment text of DCCJ 1005/1975 on BabelCite. This District Court judgment.
1. The plaintiff seeks an order for possession, under section 53 of the Landlord and Tenant Ordinance, on the grounds that the defendant has, since 14th December, 1973, sublet the premises in suit without his written consent. The defendant denies subletting and, in the alternative, pleads that, by the acceptance of rent, the plaintiff has waived his right to re-enter.
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DCCJ001005/1975 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT TSUEN WAN CIVIL JURISDICTION ACTION NO.1005 OF 1975 -----------------
----------------- Coram: E. de B. Bewley, D.J. Date of Judgment: 26th November 1976 ----------------- JUDGMENT ----------------- 1. The plaintiff seeks an order for possession, under section 53 of the Landlord and Tenant Ordinance, on the grounds that the defendant has, since 14th December, 1973, sublet the premises in suit without his written consent. The defendant denies subletting and, in the alternative, pleads that, by the acceptance of rent, the plaintiff has waived his right to re-enter. 2. I have no difficulty in deciding the first matter in the plaintiff's favour. I find that he himself is a witness of truth. Some of his evidence was contradicted by that of his son, who sometimes accompanied him to collect rent, but not on essential matters. I attribute the discrepancy to a lapse of memory on the plaintiff's part. 3. The defendant, on the other hand, gave an impression of shiftiness in the witness box and I did not believe her evidence. She called her sister to corroborate her evidence, but the latter on several occasions was at a loss and looked across the court to the defendant, apparently for guidance. The court, in fact, was constrained to order the defendant to refrain from prompting her. Her evidence was confused and contradictory and on several points did not accord with that of the defendant. Her confusion was perhaps aptly demonstrated when, in reply to Mr. Mumford's last question in cross-examination, she agreed that she had "taken over the flat" from her sister. 4. Section 53(3) provides:-
It follows from my findings of fact that the plaintiff has established a prima facie case that such an apparent change of occupancy took place between the plaintiff's visits to the suit premises in January and February 1975, and that the defendant has failed to satisfy me to the contrary. There is, therefore, deemed to have been a subletting and of course there was no written consent. 5. Mr. Ho's submission, that acceptance of rent for seven consecutive months after the issue of the writ amounts to waiver, is unsustainable. If a lessor shows a final determination to take advantage of the forfeiture - by commencing an action to recover possession for example - no subsequent act, whether receipt of rent or distress, or otherwise, will operate as a waiver(1). The fact that two of the cases quoted in support of this proposition are bankruptcy cases: Civil Service Co-operative Society Ltd. v. McGrigor's Trust(2) and Evans v. Enever(3), takes the matter no farther. 6. Mr. Ho submits that the position is different in the case of a statutory tenancy, which can only be determined by order of the court. He argues, as I understand it, that the judgment does not relate back to the date on which the writ was issued, and that issuing a writ is but one step taken towards determination of the tenancy and not an irrevocable act. I see no merit in this argument. As was stated by Somervell L.J. in Oak Property Co.Ltd. v. Chapman(4):-
When the plaintiff in the present case took out his writ, he made his election in accordance with his earlier manifested intention. 7. Thus the final question for decision, following a late amendment of the statement of claim, is whether the plaintiff has waived his right of forfeiture by the acceptance of rent during the period February - August, the month in which the writ was taken out. Mr. Mumford submits that the defendant may not deny a change of occupancy and, at the same time, claim waiver. I do not agree. The commentary on Order 18 rule 7 on page 267 of the White Book, and the cases quoted therein, make it clear that either party may, in a proper case, include in his pleading two or more inconsistent sets of material facts and claim relief thereunder in the alternative. 8. Before a party can be said to have waived his right of action there must be full knowledge of the facts: Tennant's case(5). When the plaintiff visited the suit premises in February, March, April and May, he was told on each occasion that the defendant was either out or away on business. His suspicions mounted with each visit but, in spite of the changed furniture and different occupants, he had no means of knowing for sure that the defendant's sister was lying. However, in May, when he spoke to the defendant on the telephone and put it to her that she was no longer living in the premises, she did not deny it. It was only then that the plaintiff acquired the requisite knowledge. He nevertheless continued to accept rent from the defendant's sister in the months of June and July, and the crucial question is whether this acceptance amounts to waiver. 9. Mr. Mumford submits that there is no evidence that, in these two months, the plaintiff accepted "rent" as such. This is not in accordance with my note of the proceedings, which indicates that the plaintiff said, "In June I again went to collect rent with my son", and "In June I did not go to the suit premises to collect rent. My son did". I find therefore that it was "rent" that was paid in June and July. 10. Mr. Mumford reaches firmer ground in his final submission that a qualified acceptance of rent does not operate as waiver. The question of waiver arising on the receipt of rent by the landlord of a statutory tenancy, after full knowledge of a breach by way of subletting, was considered in the Oak Property case. After reciting the strict common law rule that acceptance of rent in such circumstances amounts to a waiver, irrespective of any purported qualification by the landlord at the time of receipt of the rent, Somervell L.J. pointed out the different considerations that arose in the case of statutory tenancies, and went on to say:-
11. This decision was followed by the Court of Appeal in Carter v. Green(6). After quoting the above passage, Cohen L.J. stated:-
12. To what extent, if any, did the plaintiff qualify his acceptance of rent in June and July? In June he told the defendant's sister, "Madam Chan has told you to move out, but you are still here. Now I give you two months to move out. If you still remain here after August, I shall take legal action against you". He did not speak to her again. The plaintiff was making his position very clear. In the preceding months, when his suspicions had been growing, he had accepted the rent with mounting protest at the defendant's absence. Now, after the telephone conversation with the defendant, suspicion had crystallized into certainty and he issued an ultimatum. On the facts I find that this is a qualification that is sufficient to prevent a waiver. 13. The plaintiff made up his mind to sue at the beginning of June and instructed solicitors, who took out the writ on the 14th August. In my judgment a delay of a little over two months is not unreasonable. 14. For these reasons I find that the plaintiff has not, by the acceptance of rent, waived his right to an order under section 53. He is therefore entitled to judgment with costs.
Representation: Mr. Mumford instructed by S. Soo & Co. for plaintiff. Mr. Antony Ho of Chan & Ho for defendant. Date of hearing: 2nd & 3rd November, 1976. Date on which judgment was delivered: 26th November, 1976. Order: Judgment for plaintiff for:-
Cases cited in the judgment:-
Cases cited to the Judge but not mentioned in the judgment:-
Representation: Mr. Mumford instructed by S. Soo & Co. for plaintiff. Mr. Antony Ho of Chan & Ho for defendant. (1) Hill and Redman's Law of Landlord & Tenant 15th Ed. para. 396 (2) 1923 AER 595 (3) 1920 (2) KB 315 (4) 1947 (2) AER 1 at 6 (5) 1596 (3) Co. Rep. 64A (6) 1950 (1) AER 627 |