Ho Hoi Ting v. Ho Po

HCA006664/1980

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Coram: Liu, J. in Chambers.

Date of Judgment: 10th June, 1981

On appeal from Registrar's decision on 13th May, 1981.

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DECISION

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1. This action could not have been founded on a simpler basis. The plaintiff relied on the expiration of a Tenancy Agreement in the Chinese language for a fixed term of 3 years at the rental of $2,800 p.m. From the translation of the Chinese Tenancy Agreement, it was evident that the premises were let as the "Hon Kung Villa" which seemed to be an apartment house. From the tenor of the Chinese Tenancy Agreement, the suit premises would appear to be let as such. That did not seem to have been challenged, but I would return to the terms of the Chinese Tenancy Agreement in a moment or two.

2. Suffice it for me to say that at the expiration of the Chinese Tenancy Agreement on 31st October 1980, the defendant failed to surrender vacant possession of the suit premises to the plaintiff. Hence, the present proceedings were instituted against the defendant for, inter alia, possession on the ground that the premises had been let to the defendant for a fixed term of three years for business purposes. Judgment was obtained against the defendant in default of appearance. When the plaintiff sought leave to levy execution for possession, his attempt was met with not inconsiderable resistence. Opposition came from five alleged occupiers. In substance, their allegation was that each of them had been in occupation of a portion of the premises for a period of time with the consent and knowledge of the plaintiff. It was further contended that, in any event, any breach of the terms of the said Chinese Tenancy Agreement against sub-letting had been waived by the plaintiff in circumstances disclosed in the affirmation of the defendant filed in support of the applications of the six applicants. Playing no active role in the defence of this action, the defendant however alleged that by an oral agreement made between the plaintiff and himself on the 30th May 1978, the premises were permitted to be sublet and used for domestic purposes.

3. Arguments were launched by Mr. Mumford on behalf of the six applicants on two fronts. Firstly, it was submitted that nowhere in the Chinese Tenancy Agreement was there any restriction against subletting of the premises in whole or in part. One must bear in mind that the said Chinese Tenancy Agreement was one for the letting of the suit premises for the operation of a business. Clauses 8 and 12 of the said Tenancy Agreement, in substance, prohibited parting of the defendant's interest or management. In fact, no stranger could even be admitted into the business by the defendant. In the light of these provisions, it could hardly be arguable, in my view, that there was no prohibition in the Chinese Tenancy Agreement against parting with possession of the suit premises. If that is not sufficient to meet the first submission of Mr. Mumford, one has only to turn to the allegations of the applicants sought to be corroborated by those of the defendant. From the tenor of their allegations, it would appear to be the consensus that the defendant was not permitted by the Tenancy Agreement to sublet any part of the premises. Any different interpretation of the relationship between the plaintiff and the defendant created by the said Chinese Tenancy Agreement would make the allegation of an oral agreement granting permission to sublet and to use the premises for domestic purposes, superfluous and nonsensical. I would not be prepared to accede to the application of the applicants on the first contention of counsel, urged upon this Court with great tenacity.

4. I turn next to the second submission of Mr. Mumford, counsel for the applicants. It was submitted that there were the allegations firstly from the applicants of the plaintiff's knowledge and consent. Such allegations have not been particularized, but at this stage of the proceeding they cannot be ignored or discarded. The other allegation is, in the alternative, that in any event the restrictive terms against parting with possession and domestic user in the Chinese Tenancy Agreement had been waived by the plaintiff for reasons stated in bare outline in paragraph 3 of the defendant's affirmation filed herein on 5th May 1981. On these allegations Mr. Mumford submitted that each of the applicants was entitled, as against the plaintiff, to possession as a domestic tenant. The defendants have filed further affirmations to aver specifically that their user has at all material time been and still is domestic. There may well be more to it than what now meet the eyes in the documents before the Court, but the matter though not entirely without suspicion cannot be determined at this stage on affidavits alone. A prima fasie defence has been, in my view, established. The applicants have shown a right independent of the defendant's. For these reasons, the applicants must be allowed to come in and defend, and I would order firstly that the appeal be allowed and the judgment in default against the defendant be set aside but only insofar as it would affect the applicants. I would further order that for that purpose they be joined as parties to this action as 2nd to 6th defendants respectively with liberty to enter appearance forthwith. I would impose the condition that each of the applicants be permitted so to come in and defend and so to be joined as a party to these proceedings if and only if he or she pays into Court within ten days from today a sum representing the respective rental at the rate specified in their own respective affidavits for the period from 1st January 1981 to end of this month and thereafter to pay into Court on the 1st day of each month a sum specified as sub-rental in their respective affidavits.

5. We know not what the applicents placed before the learned Registrar. There is no professional man here before me today to assist either Mr. Mumford or the Court on this matter. The appeal has been allowed, but there is no known material on which the learned Registrar can be said to have come to a wrong conclusion. This appeal is an appeal to be heard de novo. What transpired before the learned Registrar would have a bearing on the question of costs. The application by the applicants to be joined is for their own benefit, and if the plaintiff's assertion were eventually to be substantiated and upheld, it would be wrong for the applicants to be given costs. The fairest order in the circumstances therefore would appear to be that costs before the learned Registrar and costs of today be costs in the cause of the action. Needless for me to say, the decision of the Registrar has to be, in the circumstances, set aside.

Representation:

Mr. Mumford instructed by Samuel Soo & Co. for all Applicants/Appellants.

Plaintiff in person.