Sim Lim Co (HK) Ltd v. Wong Loon Tin and Another

HCA001241/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

CASE NO. 1240 & 1241 OF 1970

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Coram: Mr. Commissioner Morley-John.

Date of Judgment: 30th June, 1971.

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JUDGMENT

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1. The above actions were consolidated pursuant to an Order of the Court dated 16th of February 1971. I have already given a verbal judgment in these consolidated actions, and in giving such judgment I stated that I would at a later date reduce my said judgment and the reasons therefor into writing, which I now do.

2. The plaintiff is the registered owner of the premises in question, that is flat number 1901 and 1902 on the 19th floor of Sun Hing Building, No. 607, Nathan Road. Wong Loon Tin, whom I shall hereinafter refer to as the 1st defendant, was the monthly tenant of flat No. 1091 and Chu Wai Peng whom I shall hereinafter refer to as the 2nd defendant, was the monthly tenant of flat No. 1902. Evidence was given on behalf of the plaintiff which was not disputed that the plaintiff's solicitor in accordance with the Tenancy (Notice of Termination) Ordinance Cap. 335 served a notice to quit on the 17th day of November 1969 on both defendants. Such notices required each defendant to quit and deliver up vacant possession of their respective premises on the 31st day of May, 1970.

3. On the 23rd day of December 1969 the plaintiff entered into a contract in writing on that date with one Madam Lau Sau Chun to sell the premises to Madam Lau and the contract provided for the delivery of vacant possession of the said premises in June 1970. By virtue of that contract the plaintiff pleads that the Security of Tenure (Domestic Premises) Ordinance 1970 which came into effect on the 30th of January 1970 did not apply to the said premises and in like manner neither do the provisions of the Ordinance which superceded that Ordinance, the Rent Increases (Domestic Premises) Control Ordinance 1970 which came into effect on the 5th of June 1970. Section 3(5)(k) of the Security of Tenure (Domestic Premises) Ordinance 1970 provides that that Ordinance shall not apply to any tenancy or sub-tenancy of premises which the landlord has before the date of the commencement of this Ordinance contracted to sell and which contract provides for the delivery of vacant possession of such premises after the commencement of the Ordinance. The plaintiff further pleads that despite the termination of the defendants' said tenancies on the 31st of May 1970 the defendants refused to quit their respective premises and are now occupying them as trespassers and the plaintiff claims possession of the premises together with mesne profits.

4. Both defendants filed an identical defence and counterclaim. Both defendants' counterclaims were struck out by Order of the Court dated 17th April 1971 on the grounds that they disclosed no reasonable cause of action and were frivolous, vexatious and or an abuse to the process of the Court in that there was no good cause of action to support their counterclaim. Both defendants in their defence denied that the contract entered into between the plaintiff and Madam Lau Sau Chun was in fact a legally binding contract, both defendants also alleged that the date of this contract was inserted sometime afterwards, in fact they alleged that the contract was entered into after the coming into force of the Security of Tenure (Domestic Premises) Ordinance and they claimed protection under the provisions of that Ordinance.

5. Mr. Lim Chong Teck, the manager of the plaintiff company gave evidence that towards the end of 1969 the company decided to sell the two flats in question and that the flats were advertised for sale in the newspapers. As a result of such advertisements he was approached by Madam Lau Sau Chun and negotiations were entered into for the sale of the flats to her. As a result of these negotiations on the 20th of December 1969 Madam Lau agreed to purchase the two flats for the sum of $129,000 and that this agreement was recorded in writing dated the 23rd December 1969, which agreement was produced (Exh. P9). This agreement inter alia provided that the purchaser was to make a deposit of $12,900, such deposit money being for the purchase of two flats in question, and which money was to be deposited with the vendor's solicitors. The purchase price of the two flats was confirmed at $129,000 and vacant possession of the said premises would be delivered in June 1970, upon which the remainder of the purchase price would be paid. Madam Lau Sau Chun gave evidence which corroborated the evidence of Mr. Lim and she agreed that she had entered into this contract with the plaintiff on the 23rd December 1969. She identified her signature on the contract, and also stated that Mr. Lim and the witness signed the contract in her presence. Her elder brother Mr. Lau Ping Man agreed that his sister had entered into this contract. In fact he said he was present with her when she signed the contract. He also said that he was the drawer of the cheque for the deposit money of ten per cent of the purchase price and that he paid this to the plaintiff's solicitor on the afternoon of the 23rd December 1969. He said that his sister had signed the contract on the morning of that date, however he stated that his sister had not received her signed copy of the contract from the plaintiff until after he had given the plaintiff the receipt which he produced dated the 23rd December 1969 which he had received from the plaintiff's solicitor. This receipt bore the number of the cheque which he had given to the plaintiff's solicitor and further evidence was given by a representative of the Hong Kong & Shanghai Banking Corporation that that cheque was cleared on the 24th December 1969. Further evidence was also given that at a later date the plaintiff's solicitor remitted this sum of $12,900 to the plaintiff.

6. The first defendant gave evidence and he agreed that he had received the notice to quit (Exh.P10A) from the plaintiff's solicitor in November 1969. He made reference to the Security of Tenure (Domestic Premises) Ordinance 1970 although he did not refer that Ordinance by its title and he said that in his opinion the premises that he occupied came under the control of that Ordinance and that therefore he was under the protection of that Ordinance. He also said that at the expiry of the notice to quit which he had received he attempted to continue to pay rent but that rent was not accepted by the plaintiff. He then made mention of the provisions of the Rent Increases (Domestic Premises) Control Ordinance 1970 but again he did not refer to that Ordinance by its title. He said that the plaintiff was not entitled to possession of the premises under the provisions of that Ordinance. He said that he had come to the conclusion that the date on the contract Exh. P9 was not the correct date, and he also said that he did not consider that such document was a contract but only a receipt. He said that the date of 23rd December 1969 had been inserted in the contract sometime after the signing of the document. He merely said that he had got the impression that the date had been filled in subsequently and he said that he felt that the date had been filled in subsequently to by-pass the law enacted for the control of premises. The first defendant also stated that the document Exh. P9 was not stamped until the 15th of September 1970 and he said that this was evidence that the contract had not been entered into in December 1969. He reiterated this fact although I had explained to him when he was cross-examining the plaintiff's witnesses that the stamp of $30 was a penalty for late stamping and I explained to him the reason why such document had to be stamped before it was produced in Court. He also said that as the plaintiff's solicitor had not transferred the money to the plaintiff until the 15th of February 1970 that showed that it was impossible for the solicitors to have received the sum of $12,900 on the 23rd of December 1969.

7. The first defendant called a witness Mr. Wong Wai Kuen who gave evidence that in December 1969 he was a sub-tenant of the flat 1901 and that he had rented the front cubicle of these premises from the defendant's wife. He said that while he was in occupation at about the time of Chinese New Year 1970, an employee of the plaintiff company visited the premises and told him that he was bringing some people to look at the premises, however, he said that after that he went into his cubicle but he gave no evidence as to why these persons were looking at the premises. The first defendant inferred that they were people being brought to look at the premises with a view to buying the premises and he said that this corroborated his contention that the plaintiff had not contracted to sell the premises in December 1969. However, Mr. Wong did not say who those persons were and therefore there is no evidence before me that such persons were prospective purchasers of the premises, they may well have been architects, surveyors, decorators or any number of persons who might have wished to look at the premises, and I am satisfied that Mr. Wong's evidence as such in no way corroborates the first defendant's contention that the plaintiff was showing prospective purchasers around this flat in 1970.

8. The second defendant gave evidence. He said that the allegation made in the statement of claim by the plaintiff alleging that he was a trespasser was incorrect, but he gave no reason as to why he said this. He also said that he did not consider the contract Exh. P9 to be a proper contract. He said that in his consideration it was only a receipt. He said that the contract needed an arbitrator and that was a person who saw what was happening and acts as a witness to it, but that the person who signed as a witness in Exh. P9 only signed as an arbitrator and therefore he did not consider that the document Exh. P9 to be a legal document. He said that it was merely a temporary receipt. He said that he considered himself protected by what he called the new law as the document Exh. P9 was stamped so much later. In cross-examination he agreed that he had received the notice to quit which was produced as Exh. P10B.

9. From the evidence which was adduced before me it is perfectly clear that the plaintiff's solicitors gave proper notice to quit to both defendants in accordance with the Tenancy (Notice of Termination) Ordinance in November 1969 and that such notices terminated both tenancies on the 31st May 1970. I am also perfectly satisfied that the document Exh. P9 is a legally enforceable agreement in writing between the plaintiff and Madam Lau Sau Chun whereby the plaintiff agreed to sell to Madam Lau the two flats in question at a purchase price of $129,000 and vacant possession of the said premises would be delivered in June 1970. I am also perfectly satisfied on the evidence of Mr. Lim Chong Teck, Madam Lau Sau Chun and her brother that this contract was entered into on the 23rd of December 1969 and that therefore the provisions of the Security of Tenure (Domestic Premises) Ordinance 1970 did not apply to the premises in question. Similarly as the notices to quit having become effective on the 31st day of May 1970 the provisions of the Rent Increases (Domestic Premises) Control Ordinance 1970 do not apply to the premises in question.

10. Under the circumstances I have no hesitation in giving judgment for the plaintiff against both defendants as claimed with costs and I further order that the moneys paid into Court by both defendants be paid out to the plaintiff's solicitors.

Representation:

Charles Ching (K.C. Yung & Co.) for the Plaintiff.

Both Defendants in person.

Oral judgment reduced into writing.