Yue Wan Loy Ltd v. Chow Hok Lam and Another

Case No.HCA 2336/1979

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002336/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2336 OF 1979

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BETWEEN
	YUE WAN LOY LIMITED	Plaintiff
	and
	CHOW HOK LAM	1st Defendant
	KAM YUEN ORNAMENT MANUFACTORY (a firm)	2nd Defendants

Coram: Mr. Commissioner Hooper in Chambers

Date of Judgment: 27th February 1980

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JUDGMENT

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1. This is an appeal from the decision of the Registrar in which an order was made on the 30th January 1980 dismissing an application by the Plaintiff to strike out the Defence of the 2nd Defendants under the rules of the Supreme Court Order 18 rule 19 and under the inherent jurisdiction of the Court on the ground inter alia that it disclosed no reasonable defence. The action had first been brought only against the 1st Defendant. The Statement of Claim was in the following terms:-

"	1. The Plaintiff is the registered owner and is entitled to possession of the premises known as No. 441 Castle Peak Road, Ground Floor, Kowloon in the Colony of Hong Kong (hereinafter referred to as "the said premises").
	2. The said premises form part of an entirely new building in respect of which the Occupation Permit to occupy the same was granted by the Building Authority after the 16th day of August 1945 and by reason whereof Part I of the Landlord and Tenant (Consolidation) Ordinance Cap. 7 does not apply to the said premises.
	3. By a Tenancy Agreement in Chinese writing dated the 1st day of May, 1977, the said premises were let to the Defendant by the Plaintiff's predecessor in title for business purposes for a term of two years at the rental of $2,400.00 per month payable in advance on the 1st day of each and every month.
	4. Pursuant to Section 122 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, Messrs. David Tong & Co., Solicitors for the Plaintiff's predecessor in title on the 25th day of October, 1978 on behalf of the Plaintiff's predecessor in title served a written notice of termination of tenancy dated the 25th of October 1978 on the Defendant terminating the tenancy of the said premises on the 30th day of April, 1979. A copy of the said notice of termination of tenancy in English and Chinese were also posted upon the main entrance of the said premises on three consecutive days, namely, 25th, 26th and 27th days of October, 1978.
	5. The said notice of termination of tenancy expired by effluxion of time on the 30th day of April, 1979.
	6. No key or construction money or other premium of a similar nature have been paid by the Defendant to the Plaintiff in respect of the said premises and by reason whereof Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 does not apply to the said premises.
	7. Despite expiry of the said notice of termination of tenancy and repeated requests by the Plaintiff to the Defendant the Defendant has failed and still fails to deliver up vacant possession of the said premises to the Plaintiff.

WHEREFOR the Plaintiff claims:-

	(i)	Vacant possession of the said premises.
	(ii)	Mesne profits at the rate of $2,400.00 per month or at such rate as the Honourable Court may determine from the 1st day of May, 1979 until delivery of vacant possession of the said premises.
	(iii)	Costs.
	(iv)	Further or other relief."

2. The writ was issued on the 1st June 1979. On the 4th July 1979 the 2nd Defendants filed an application to be joined as a 2nd Defendant to these proceedings and asking for leave to file a Defence within 14 days. The grounds on which the 2nd Defendants made this application were that a major part of the suit premises had since July 1974 been let to them by one Kwok Ping Kuen, who was understood to be a sub-tenant of the Defendant CHOW Hok Lam (hereinafter referred to as the 1st Defendant). In an affidavit in support of the application the 2nd Defendant's partner testified that the 2nd Defendants had paid rent to the said Kwok Ping Kuen up to the 31st May 1979 but since that time the said Kwok Ping Kuen had refused to accept any further rent and had shown him a copy of the writ herein. He also testified that the notice of termination referred to in para. 4 the Statement of Claim had never been posted upon the main entrance of the suit premises or anywhere else. Furthermore the 2nd Defendants had never been given any Notice of Termination themselves. This application was duly granted by an order of the Registrar dated 11th July 1979. A Memorandum of Appearance was entered for the 2nd Defendants on the 20th July 1979. On the same day the 2nd Defendants filed the Defence which was the subject matter of the application to strike out. This Defence was in the following terms:-

"
		DEFENCE
	1.	Paragraph 1 of the Statement of Claim is admitted.
	2.	The 2nd Defendants have no knowledge of the matters pleaded in Paragraphs 2, 3 and 6 of the Statement of Claim, and make no admission thereto.
	3.	Paragraphs 4 and 5 are not admitted and the Plaintiff is put to strict proof of the same.
	4.	A major part of the suit premises have been let to the 2nd Defendants by one Kwok Ping Kuen since July or August 1974 at the current rent of $2,230 per month payable in advance on the 1st day of each and every month. Save as aforesaid and save that the 2nd Defendants are still in occupation of part of the suit premises, Paragraph 7 is denied."

3. On the 17th October 1979 a Memorandum of Appearance was filed on behalf of the 1st Defendant Chow Hok Lam.

4. The application under Order 18 rule 19 to strike out the 2nd Defendant's Defence was dated the 10th December 1979 and filed on the 11th December 1979. It was set down for hearing on the 19th December 1979.

5. In the meantime an application on the part of the Plaintiff and 1st Defendant for a consent order was made on the 14th December 1979 for judgment to be entered for the Plaintiff for possession of the suit premises and certain consequential orders. A consent order was duly made by the Registrar in terms of this application on the 17th December 1979. Pursuant to this order judgment was entered on the 11th January 1980 against the 1st Defendant.

6. The application to strike out the Defence of the 2nd Defendants came before the Court on the 19th December 1979 but was adjourned to the 27th December. However on the 27th December 1979 there was a further adjournment for argument and time set aside for the hearing of this application. Both parties were given leave to file affidavits within 14 days of that date. The application was eventually heard on the 30th January 1980 and was dismissed with costs to the 2nd Defendants and with certificate for counsel. No affidavit had been filed pursuant to the order on the 27th December 1979, so that although the application to strike out was based upon the fact that the Defence disclosed no reasonable defence and/or was frivolous and vexatious, it must have been dismissed on the first of these two grounds.

7. On the 30th January 1930 the 2nd Defendants filed an application that leave be granted to them to amend their Defence. The application was set down for hearing on 6th February 1980. In the meantime on the 1st February 1980 the Plaintiff filed an application for final judgment against the 2nd Defendants under Order 14 Rules 1 & 2 of the Rules of the Supreme Court. Their application was supported by the usual affirmation. Also on the 1st February 1980 the Plaintiff filed their notice of appeal against the decision of the Registrar given on the 30th January 1980 dismissing the Plaintiff's application to strike out the 2nd Defendant's Defence and to enter the judgment under Order 18 rule 19 of the Rules of the Supreme Court. Finally on the 6th February 1980 in the absence of the representative for the Plaintiff the Registrar granted leave to the 2nd Defendant to amend their Defence and the amended Defence was filed on the 7th February and served on the Plaintiff on the same day.

8. There are now two applications before me; the first being the Application to strike out the original Defence of the 2nd Defendants under Order 18 Rule 19 of the RSC, which since the matter is now on appeal, takes the form of a re-hearing. The 2nd application is an application by the Plaintiff for summary judgment under Order 14 Rule 1 & 2 of the RSC.

THE APPLICATION TO STRIKE OUT (O. 18 R. 19)

9. This application I understand is now being pursued on the issue of costs. The Defence of the 2nd Defendants was to say the least the product of very bad drafting. How such a pleading could be entered in the Supreme Court by a firm of solicitors is surprising. By admitting the 1st paragraph of the Statement of Claim the 2nd Defendants were admitting that the Plaintiff is the registered owner of the suit premises and is entitled to possession ! The 2nd Defendants' non-admission of paragraph 3 of the Statement of Claim is as good as a denial of the same. This means that the 2nd Defendants were denying that the premises were ever let to the 1st Defendant. This is surprising since the 2nd Defendants, when making their application to be joined as a defendant, were claiming to derive their tenancy from one Kwok Ping Kuen, who was described as deriving his tenancy from the 1st Defendant. In other words the 2nd Defendants were claiming to have derived their rights from the 1st Defendant. This however was not made clear in the Defence. On the contrary in paragraph 4 of the Defence although the 2nd Defendants claimed that a major part of the suit premises had been let to them by this person Kwok Ping Kuen since July or August 1974, they did not say from whom this person Kwok Ping Kuen derived his title. If Mr. Kwok Ping Kuen was a trespasser the 2nd Defendants could derive no better title than that of Kwok Ping Kuen as against the Plaintiff.

10. As Mr. Edward Chan has correctly pointed out a defendant to an action for the possession of land must plead specifically every ground of the defence on which he relies, and a plea that he is in possession of the land by himself is not sufficient (Order 18 Rule 8 (2)). The matter is dealt with in the White Book (1979) in a note at 18/8/11 as follows

Possession of Land - in view of paragraph (2), supra, it is now necessary for the defendant in an action for possession of land to plead specifically every ground of defence on which he relies; he can no longer plead the general issue by alleging that he is in possession by himself or his tenant.)

11. There is a clear breach of this rule. On the face of the Defence therefore the 2nd Defendants were claiming to derive their right of title from somebody who was a nobody, it not having been pleaded that he had an adverse or superior title to the Plaintiff. The fact that paragraphs 2 and 6 of the Statement of Claim were not admitted is neither here nor there because the Plaintiff would not, on the 2nd Defendants' pleading, have to invoke any of the parts of the Landlord and Tenant (Consolidation) Ordinance to justify their claim. The fact that paragraphs 4 & 5 of the Statement of Claim were not admitted is also neither here nor there, because the 2nd Defendants did not claim in their defence to derive any title from the 1st Defendant.

12. I agree with Mr. Edward Chan that the Defence filed by the 2nd Defendants disclosed no reasonable ground of defence and that the Learned Registrar should have acceded to the application of the Plaintiff to strike it out, or at the very least allowed them to amend.

13. As I said earlier I understand from the parties that this particular appeal is only being argued on the issue of costs and that there is a second application by the Plaintiff under Order 14 for determination. I therefore hold that the Plaintiffs are entitled to the costs of the hearing before the Registrar and also the costs of this appeal.

APPLICATION BY PLAINTIFFS FOR SUMMARY JUDGMENT

(Order 14 rule 1)

14. Before determining this application I am asked to determine a preliminary point. Mr. Mok for the Defendant takes this preliminary point that the Statement of Claim has not been amended to refer to the 2nd Defendants and contains therein no claim against the 2nd Defendants. He therefore argues that it is premature for the Plaintiff to bring this application. He has submitted that the application to be joined as a party did not stipulate under what rule the application was made but that it could have been made under either Order 15 Rule 10 or Order 15 Rule 6. So far as an Order 15 Rule 6 application is concerned the subsequent procedure is governed by Order 15 Rule 8 (1) (a) (b). Mr. Mok relies on a general proposition that a person has to be joined as a party to an action and a claim has to be made against any party. He submits that no grounds for relief against the 2nd Defendants are contained in the Statement of Claim. Mr. Chan on the other hand argues that the present Statement of Claim in which the Plaintiff seeks vacant possession of the premises is not restricted to the 1st Defendant alone. He argues that paragraph 1 of the prayer is sufficient.

15. Again with respect to Mr. Mok I support Mr. Chan's submission. Of course a person who has been joined under Order 15 Rule 10 is a party to the action, whether or not the Statement of Claim has been amended. Of course the Plaintiff may bring an O. 14 application for summary judgment against that party, even though there has been no amendment of the Statement of claim. There being no provision under Order 15 Rule 10 that the Statement of Claim should be amended, as in the case of Order 15 Rule 6 (as required by Order 15 Rule 8,) there is no necessity for the Statement of Claim to be amended. I rule against the Defendants on this preliminary point. I will hear argument as to costs on this preliminary point after the conclusion of the hearing of the Order 14 summons.

	Sd.
	(N.B. Hooper)
	Commissioner of the High Court

Representation:

Mr. Edward CHAN instructed by Yung Yu Yuen for the Plaintiff.

Mr. Y.C. MOK instructed by Ip, Ku & Stoppa for 2nd Defendant.