Chui Kwok Ying v. Lam Fook
Read the full judgment text of HCA 77/1970 on BabelCite. This High Court CFI judgment.
1. In this action the plaintiff claimed possession of premises described in the statement of claim on the ground that the defendant, as tenant of the plaintiff, had failed to pay the monthly rent and that by reason thereof the plaintiff was entitled to re-enter under the express terms of the agreement of tenancy. Upon the hearing of an application under O.14 on the 11th April, 1970 leave was given to the plaintiff to enter judgment for possession. On the 16th April the defendant filed a summons
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HCA000077/1970 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 77 OF 1970 -----------------
Coram: Huggins, J. in Chambors. Date of Judgment: 25 May ...(illegible) --------------------------------------------------- REASONS FOR JUDGMENT --------------------------------------------------- 1. In this action the plaintiff claimed possession of premises described in the statement of claim on the ground that the defendant, as tenant of the plaintiff, had failed to pay the monthly rent and that by reason thereof the plaintiff was entitled to re-enter under the express terms of the agreement of tenancy. Upon the hearing of an application under O.14 on the 11th April, 1970 leave was given to the plaintiff to enter judgment for possession. On the 16th April the defendant filed a summons claiming relief against forfeiture. No point was taken by the plaintiff as to the terms of the summons but it was contended that as relief had already once been granted to the plaintiff in respect of a previous re-entry for breach of the same condition for payment of rent the court had no jurisdiction to grant the relief sought. The plaintiff affirmed that such relief was granted by consent in Original Jurisdiction Action no. 960 of 1969 and this was not denied. I was referred to s.7 of the Law of Property Amendment Ordinance, which reads in part:
I was of opinion that regardless of the merits of the application there was no jurisdiction to grant the relief claimed and I dismissed the application. 2. After giving this decision I was anxious to discover the reason for the enactment of this provision, more especially as I had on a previous occasion granted relief a second time for breach of a condition to pay rent. Standing alone s.7 would clearly be wide enough to cover the present case but it appears to have its origin in s.6 of the Law of Property Amendment Act, 1859 (22 & 23 Victoria c.35). Reference to the English section shows at once that the limitation on granting relief to any person more than once in respect of the same covenant or condition relates to the power to relieve "under this Act". That Act was concerned with forfeiture for breach of covenants or conditions to insure against loss or damage by fire. The present section 7 of our Ordinance was formerly s.6 of the Law of Property (Leases) Ordinance (No.11 of 1873), which followed the wording of the English section mutatis mutandis. How, then, did it come about that the vital words disappeared from the Ordinance? In the 1904 Edition of the Laws one finds that those words still remained in the section although the Ordinance was now given the short title "The Law of Property Amendment Ordinance 1873" and, for reasons which no doubt seemed good to him, Sir John Carrington renumbered the Ordinance as No. 2 of 1873. Thus when, in the course of the law revision of 1911, the Legislature referred in the Schedule to the Law Revision (No.2) Ordinance 1911 to "Ordinance No.2 of 1873" this was a reference to the statute with which we are concerned. The effect of this reference was that in what then became (by reason of the inclusion of a section prescribing the short title) s.7 the words "under this Ordinance" were repealed in both places where they originally appeared - only one of these places being in the part of the section material to the present case which I have cited. 3. It is material to see the manner in which this repeal was effected. The Law Revision (No.2) Ordinance 1911 merely provided that the Schedule to that Ordinance should be added to the Schedule to the Law Revision Ordinance 1911. The earlier Ordinance was "An Ordinance for further promoting the Revision of the Law by repealing certain parts of enactments which have ceased to be in force or have become unnecessary". The Ordinance recites:
Why it should have been thought that the material words in s.7 were spent, or had ceased to be in force otherwise than by express repeal of the Legislative Council, or had by lapse of time or otherwise become unnecessary, or were a useless and redundant expression, it is difficult to understand. Indeed I cannot but suspect that the words were repealed per incuriam, but repealed they were - expressly and deliberately. I was called upon to construe the remaining words as they stood and even if my attention had been drawn to the history of the section I should have found myself driven to the conclusion which I in fact reached. The courts are bound to assume that the Legislature has meant what it has said, even though they may suspect that the Legislature has not said what it meant. The result of the repeal was to limit the long standing English rule of Equity that a condition for re-entry for non-payment of rent is to be treated as giving security for payment and that relief should generally be granted upon payment of the arrears of rent and costs: Howard v. Fanshawe 1895 Ch.581. That may be unfortunate for tenants like the applicant but in my view the law is that the Supreme Court does not have power to relieve the same person more than once in respect of the same covenant or condition even though that covenant or condition may relate to the payment of rent. It is open to the Legislature to consider whether the former position should be restored. 25 May ...(illegible) Representation: S.H.Leung (LO & Lo) for Plaintiff Defendant in person |