Fung Kwai Ching (Landlady) v. Yick Kit Bing (Tenant)

DCCJ000190/1973

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

RENT INCREASES APPLICATION NO. 190 OF 1973

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Coram: Liu, D.J., Q.C. in Court.

Date of Judgment: 5 March 1974

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RULING

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1. The Applicant is the registered owner of Flat B on the 5th floor of No. 366 Hennessy Road which is post-war premises let to the Respondent for domestic purposes on a periodical monthly tenancy commencing on the first day of each month. Under the provisions of the Rent Increases (Domestic Premises) Control Ordinance, Cap. 338 which were consolidated by the original Part II of the Landlord and Tenant (Consolidation) Ordinance Cap. 7, the Applicant served on the Respondent a notice to quit specifying therein her intention of requiring possession of the suit premises for self occupation. On receipt of the said notice to quit, the Respondent duly served a counter-notice which did not dispute the validity of the notice to quit but put the Applicant to proof and claimed greater hardship. The notice to quit was made to expire on a wrong date not coinciding with the last day of the month. The original Part II has been repealed by the Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance 1973 which came into operation on the 15th December 1973. It is no longer necessary nowadays for a person who became landlord or principal tenant before the commencement date of the 1973 Ordinance to serve any notice to quit for recovering post-war domestic premises; he may proceed immediately by a writ of summons in the District Court. Likewise, the current Part II does not call for the service of any counter-notice. (Vide: the current s. 53 Cap. 7 and Practice Direction issued by Judge Collier on the 18th December 1973.) But this case was pursued under the provisions of the Rent Increases (Domestic Premises) Control Ordinance, Cap. 338 as consolidated by the now repealed original Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7. The procedure then applicable was laid down in the now repealed s. 54 Cap. 7 whereby a landlord had to serve the requisite notice to quit, and within 14 days of the service thereof a tenant was entitled to serve a counter-notice in the prescribed form disputing the landlord's right to serve the notice to quit; it was only upon receipt of a counter-notice that the landlord could proceed in the District Court by an application otherwise the eviction proceedings would have to be commenced by writ. Solicitor for the Respondent rightly conceded that under the then s. 54(6) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, only upon the service on the tenant of a valid notice to quit was the tenant enabled to serve a counter-notice. Thus, in serving her counter-notice without any reservation on the Applicant in this case the Respondent must be taken to have accepted the notice to quit as being valid, despite the fact that it did not expire on a proper date. Acting on her counter-notice, the Applicant issued the present application, and thereafter the Respondent applied for and obtained legal aid. Mr. Ip for the Respondent sought to argue before this Court that the notice to quit was inherently defective as it expired on the wrong date. Mr. Ip was content to rely on a statement contained in paragraph 2165 at page 996 of Woodfull on Landlord and Tenant Volume 1 26th Edition to the effect that a notice must require a tenant to quit at the proper time. On the authorities brought to his attention, Mr. Ip submitted that they were decided on their own particular facts. In In re Swanson's Agreement (1946) 62 T.L.R. 719, a landlord gave a notice to quit which was some two months too short, but the tenant acted on it as if it had been given to expire on the proper date, and it was held that the notice must be treated as if it had been given for the proper date and valid. In Wallis v. Semark, [1951] 2 T.L.R. 222 at p. 227 Denning L.J. , as he then was, observed: "Since the fusion of law and equity, however, the position is entirely different and nowadays a promise by a tenant to accept an invalid notice as valid will be binding on him if it was intended to be binding, intended to be acted on, and was in fact acted on." In serving the counter-notice, the Respondent must have accepted the notice to quit as being valid, and in addition, she did not thereby challenge its validity. The Applicant has acted on her counter-notice and has had this application brought to trial on it. Much time and expense have been wasted, and it was not until some four days before the trial and almost a year after the issuance of the application that the Respondent gave notice of her intention to challenge the validity of the notice to quit. In my view, the Applicant has been led too far for the Respondent to be allowed, as it were, to go back to square one. I rule that the Respondent accepted and must be taken as having accepted the notice to quit as being valid and that she cannot now be permitted to challenge the validity thereof. It is quite unnecessary, therefore, for me to consider and decide whether the repealed s. 54 Cap. 7 envisaged a common law notice to quit.

Representation: