Ip Kit Bing v. Cheng Kim Yan t/a Kan Fung Ho
Read the full judgment text of HCA 1447/1969 on BabelCite. This High Court CFI judgment was delivered on 25 June 1970.
1. It is not disputed that the plaintiff has at all material times and still is the registered owner of the ground floor of No.6C Fuk Tsun Street, Kowloon (hereinafter referred to as the premises). In 1959 the premises were first let to the defendant by an oral agreement on a monthly tenancy of $700 per month. By a lease under seal dated the 25th February, 1965 the premises were demised to the defendant for a term of 42 months from the 1st January, 1965 at the rent of $1,000 per month inclusive
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HCA001447/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1447 OF 1969 -----------------
Coram: Mr. Commissioner Morley-John in Court. Date of Judgment: 25 June 1970 ----------------- JUDGMENT ----------------- 1. It is not disputed that the plaintiff has at all material times and still is the registered owner of the ground floor of No.6C Fuk Tsun Street, Kowloon (hereinafter referred to as the premises). In 1959 the premises were first let to the defendant by an oral agreement on a monthly tenancy of $700 per month. By a lease under seal dated the 25th February, 1965 the premises were demised to the defendant for a term of 42 months from the 1st January, 1965 at the rent of $1,000 per month inclusive of rates. This lease expired at the end of June 1968 and thereafter the defendant remained on the premises, according to the plaintiff, on a monthly tenancy at a rent of $800 per month until the plaintiff on the 28th March, 1969 gave the defendant six months' notice of termination of the tenancy in accordance with the provisions of s.3 of the Tenancy (Notice of Termination) Ordinance Cap. 335, such notice required the defendant to quit and deliver up vacant possession of the said premises on the 30th September, 1969. Despite the said notice and requests made by the plaintiff the defendant has refused to vacate the premises and according to the plaintiff is still in wrongful occupation and is trespassing therein, and the plaintiff claims an order for possession of the premises and mesne profits at the rate of $800 per month from the 1st October, 1969 until judgment or possession. 2. The defendant denies that he is in wrongful occupation of the premises and denies that he is a trespasser. He alleges firstly that the notice of the 28th March, 1969 is incomplete and void because the said notice was only posted on the premises on one occasion, that is on the 28th March, 1969 only. Secondly, the defendant alleges that the plaintiff has granted him a further lease of the premises for a term of five years commencing on the 1st July, 1968 at a monthly rental of $800 including rates. The defendant counterclaims for a declaration that he is entitled to this five year tenancy, also for a refund of a sum of $5,400 for excessive rental that he alleges he was charged by the plaintiff for the period from 16th July, 1959 to 15th July, 1962 and also for an order that the plaintiff be barred from further creating actions like this present one prior to the 30th June, 1973. 3. The plaintiff gave evidence, inter alia, that she was the registered owner of the premises, she produced a copy of the occupation permit from the Building Authority relating to the premises as non-domestic premises dated 31st May, 1957. She also produced the lease dated the 25th February, 1965 executed by herself and the defendant. She was quite adamant that she had never promised to or granted the lease of five years as alleged by the defendant and she further stated that she had never asked her husband or anyone else acting on her behalf to grant such a lease. She stated that when the lease expired at the end of June 1968 the defendant told her that his business was bad and so she agreed to allow the defendant to stay on as a tenant at the reduced monthly rental of $800 per month. 4. Mr. Au Wing Fai gave evidence that he was a clerk employed by Messrs. Shea & Co., solicitors and that he had been so employed for the last six years. He said that part of his duties was to collect rental from the defendant on behalf of the plaintiff. He stated that in 1967 the defendant approached him with a request that his rental should be reduced to $800 a month. However he stated that he did not comply with this request. He emphatically denied that he had ever agreed to grant or granted the 5 year lease as alleged by the defendant. 5. Mr. Ng Wai Ming, a clerk to Messrs. Hon & Co., the solicitors at present acting for the plaintiff said that in accordance with instructions that he had received, he posted a notice on the premises on the 28th, 29th and 30th March, 1969 and he produced a copy of the notice which he had posted. This notice gave the defendant six months' notice of termination of the tenancy in accordance with the provisions of s.3 of the Tenancy (Notice of Termination) Ordinance. He also pointed out on his copy notice where he had recorded the times and dates of the posting of the notice and he identified his signature on the said notice. He denied in cross-examination that he had only posted up one notice on the 28th March, 1969. 6. The defendant who appeared in person gave evidence on his own behalf. He admitted that he had leased the premises from the plaintiff since 1959 but he said that he was forced to sign the lease dated the 25th February, 1965 as a result of an action brought against him by the plaintiff. He agreed that this lease came to an end in June 1968 and that he stayed on in the premises. He agreed that the notice dated the 28th March, 1969 was served on him by the plaintiff but upon receipt of such notice, he said that he understood that his lease had not yet expired as prior to the expiration of the first lease in 1968 the plaintiff had promised that she would give him another lease of five years if he would agree to, he said, an increase of rent to $800 a month. He then said that this promise was made by Mr. Au Wing Fai of Messrs. Shea & Co., who were at that time the plaintiff's solicitors. He said that Mr. Au did make such a promise to grant him a lease in 1968 and in making his promise he had his instructions from the plaintiff. He said therefore that the notice was bad for two reasons, firstly because the lease was not expired, and secondly because that the notice was only posted at the premises for one day and not for three days as is laid down in s.3(3) of the Tenancy (Notice of Termination) Ordinance. 7. With regard to his counterclaim for $5,400 he said he was claiming this amount because the plaintiff should not have charged him that amount of rent between 1959 and 1962 as it was excessive when compared with the rents of similar buildings. He did, however, agree that he had not taken any action in respect of this matter before and he agreed that he had paid his rent of $700 without complaining. 8. With regard to the plaintiff's claim and the defendant's defence thereto, it falls on me to decide firstly whether the notice of the 28th March was properly served and posted and secondly, whether the defendant is at present lawfully in possession of the premises as a result of an oral agreement by the plaintiff to grant him a five year lease commencing on the 1st July, 1968 or as the defendant would appear to allege as a result of an oral five year lease actually granted to him by Mr. Au Wing Fai on behalf of the plaintiff. 9. Section 3(1) of the Tenancy (Notice of Termination) Ordinance provides as follows:-
As to the provisions in sub-section 3 of that section relating to the posting of a notice, I am satisfied that this sub-section only applies in the case of sub-tenancies and there is no evidence in this case of any existing sub-tenancy and it is clear that the defendant is not a sub-tenant. Sub-section 3 provides:-
However, I must add that I believe the evidence of Mr. Ng Wai Ming when he stated that he did post this notice on the premises on three successive days and I am quite satisfied that proper notice was given to the defendant. 10. With regard to the question of the alleged five year lease, I accept the evidence of the plaintiff and Mr. Au Wing Fai when they stated that no agreement to grant such a lease was ever made or in fact that no such oral lease was ever granted as alleged by the defendant. I have had the opportunity of observing the demeanour of both these witnesses when they gave evidence and also that of the defendant and I have no hesitation in believing the evidence of the plaintiff and Mr. Au. In the circumstances of this case it is beyond the bounds of probability that any such an agreement or lease under the circumstances alleged by the defendant was ever granted by a solicitor's clerk on behalf of the plaintiff. I must add that even if any such agreement as alleged was granted, which I do not believe, the defendant would be estopped from pleading such an agreement under the provisions of s.4 of the Statute of Frauds 1677 the provisions of which apply to this Colony by virtue of the Application of English Law Ordinance Cap.88 and which requires that any agreement for a lease as alleged by the defendant must be in writing or some note or memorandum thereof must be in writing and there is no such written agreement, note or memorandum in this case. Again if any oral lease for a term of five years existed as alleged by the defendant, which again I do not believe, then again under the provisions of s.1 of the same Statute because the lease was not made by Deed the defendant would have been a tenant at will only and such tenancy could have been terminated by the plaintiff at any time. 11. I therefore find the plaintiff's case proved. I make an order for the possession of the premises together with judgment for mesne profits at the rate of $800 a month from the 1st October, 1969 until possession together with costs. 12. As to the defendant's counterclaim for the sum of $5,400 I do not consider that he has made out any case to support this claim, he voluntarily entered into the monthly tenancy in 1959 at a monthly rental of $700, he took no action at that time to attempt to have this rent varied. In fact he later entered into a 2 1/2 year lease of the premises at a monthly rental of $1,000 per month. He said he was forced into signing this lease, which I do not believe. At the most he was obliged to enter into this lease if he wished to remain in possession of the premises. It follows therefore that the whole of the defendant's counterclaim must be dismissed with costs.
Representation: Mr. P. Woo instructed by Messrs. Hon & Co. for the Plaintiff. Defendant in person. Judgment read in Court. |