Lee Lan Ying v. Chan Muk Ng

HCA007924/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Power, J.

Date of Hearing: 21st December 1983.

Date of Delivery of Judgment: 21st December 1983.

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JUDGMENT

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1. In this matter the Plaintiff Lee Lan Ying is the registered owner of certain premises known as  Shop No. 2 on the ground floor and open yard of the Jenford Building in Kowloon. The Plaintiff by tenancy agreement dated the 6th day of June 1979 let these premises to the Defendant for a term of 4 years commencing from the 1st day of June 1979 to the 31st day of May 1983 at a monthly rental of $3,800. The Defendant went into occupation of the premises and on the 11th March 1983 the Plaintiff, through her solicitors, sent a letter to the Defendant informing him that the tenancy would expire on the 31st May 1983 and requesting him to quit and deliver up vacant possession on that date. The tenancy agreement did expire on the 31st May 1983. The tenant has failed to deliver up possession and the Plaintiff now brings action to recover possession. This action was commenced by a writ of summons issued on the 25th June 1983. The Defendant, on the 13th July 1983,  filed a defence in which he claimed that by an oral agreement made about mid January 1983, he had agreed with the Plaintiff to the grant of a further term of 3 years on the same terms and conditions as the tenancy agreement which was to expire on the 31st May 1983. It is upon the basis of this alleged agreement that the Defendant says that he now lawfully occupies the premises. He suggests that there has been part  performance by him of this agreement by reason of his having paid an amount of $3,800 as rent on the 4th June 1983 to the Plaintiff. The Plaintiff admits that she received a cheque for that amount but says that she did not accept it as being a rental payment and that she has, although still having in her possession the cheque, never cashed it. The Plaintiff contends that there was never any such agreement and that there was never any payment made thereunder.

2. Mr. Chow who appears for the Defendant submits that there is a triable issue as to whether or not there was acceptance of the cheque as a rental payment by the Plaintiff. He submits that it would be open to the trial court to infer from the Plaintiff's action of keeping the cheque that she was accepting it as a rental payment. Mr. Cunningham, who appears for the Plaintiff, submits that this submission must be examined closely in the light of the uncontested facts. The first fact to which he points is the allegation by the Defendant that the oral agreement was made on or about mid January 1983. Mr. Cunningham submits that this date is one of particular importance when the sequence of events is examined. He turns, having established this date, mid January 1983, to examine the letter of the 11th March 1983 sent by the Plaintiff's solicitors requiring delivery up of vacant possession. Mr. Cunningham argues that even if there was an oral agreement entered into in January that it was unenforceable until reduced to writing or until there was part performance and that, if any such agreement did exist, the letter of the 11th March 1983, evincing as it did, a clear intention to re-take possession on the 31st May 1983, was a clear and final repudiation of that agreement. He submits that, in the light of this letter, no inference can be drawn against his client from the fact that she did not return the cheque. This submission loses no weight when one looks at the date of issue of the writ. This was issued on 25th June 1983 just two weeks after the suggested acceptance by the Plaintiff of a payment of rent. We have then an unenforceable agreement said to have been entered into in January a clear repudiation of it in March and a further repudiation of it on 25th June 1983. Could a Court in such circumstances infer from the Plaintiff's keeping the cheque that she was accepting it as a rental payment? I am satisfied that it could not. I am satisfied that even if there was an oral agreement in January the Defendant has raised no triable issue. I am satisfied that the Defendant, if this action continued, must fail in his defence and that it is, therefore, an appropriate case in which to make the order sought. There will be judgment for possession for the Plaintiff. I order that the claim for damages contained in paragraph 2 of the prayer be referred to the Master for assessment thereof. The Defendant is to pay the Plaintiff's costs of the action to be taxed except as regards the costs of the 10th October, which were awarded to the Defendant and the costs of the 25th October when it was agreed that there would be no order as to the costs. Both of these orders are to stand.

Representation:

Mr. Cunningham (Liu, Chan & Lam) for Applicant/Plaintiff.

Mr. S. Chow (K.Y. Woo & Co.) for Respondent/Defendant.