Shing Yip Co Ltd v. Fung Kwok Wai
Read the full judgment text of DCCJ 9706/1981 on BabelCite. This District Court judgment was delivered on 3 September 1982.
1. This action concerns the claim by the plaintiff for an order for possession of Flat C, 14th Floor, Shing Yip Building, 46 Lockhart Road, Wanchai, Hong Kong. In view of the fact that as the case was opened, it was indicated by Counsel for the Plaintiff that the Court would probably find little difficulty if it ever came to the fact of granting relief against forfeiture, it is perhaps surprising that this action has been fought out to its bitter end. Nevertheless, I appreciate that the issues r
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DCCJ009706/1981 Landlord and tenant - Construction of Agreement - Consent - Waiver - Acquiescence -exemption Clause - Relief Against Forfeiture IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO.9706 OF 1981 ____________________
____________________ Coram: Deputy Judge A. Rogers Date: 3 September 1982 --------------------------- JUDGMENT --------------------------- 1. This action concerns the claim by the plaintiff for an order for possession of Flat C, 14th Floor, Shing Yip Building, 46 Lockhart Road, Wanchai, Hong Kong. In view of the fact that as the case was opened, it was indicated by Counsel for the Plaintiff that the Court would probably find little difficulty if it ever came to the fact of granting relief against forfeiture, it is perhaps surprising that this action has been fought out to its bitter end. Nevertheless, I appreciate that the issues raised by these proceedings may be of considerable importance to the parties involved. 2. The premises involved are domestic premises which are used by Mr. Fung as his family home. Many of the facts and much of the law which arises in this case is not in dispute between the parties. The cause of complaint is that Mr. Fung has erected or installed 2 air-conditioners in the premises without previous written consent by the landlord. It is the Plaintiff's contention that the doing of these acts without the consent constitutes a breach of clause 2(e) of the Tenancy Agreement of the 1st of July 1968. In order to examine this claim it is necessary to consider how the state of affairs arsoe and for this it is necessary to examine what in colloquial terms is ancient history. 3. Sometime, which I find to be approximately around the middle of June 1968, Mr. Fung was passing Shing Yip Building at 46, Lockhart Road when he noticed that there was advertised a flat to let. He went in and made inquiries. A Mr. Lau Chi Ming was called down from upstairs. I will deal with Mr. Lau's position more fully later on but at present it will suffice to say that I am satisfied on the evidence that the best description of Mr. Lau's position is that he was the building superintendent. Mr. Lau then showed Mr. Fung the flat on the 14th Floor which was for let. The 14th floor was the top floor of the building and over the portion of Flat C there was nothing on the roof nor was there a penthouse. Anybody who has lived or worked on the top floor of a building would know that that is a very hot place in Summer. Mr. Fung liked the premises and Mr. Lau told him what the rent was and what the conditions were. These included, for example, deposit of 2 months rental and a deposit for the water charges. 4. Shortly after this event, 2 electric meters were installed in the flat. One meter was a 5-Amp meter, in other words sufficient power for ordinary lighting and the other meter was a 25-Amp meter, clearly for power for such things as air-conditioners and electric cookers. A copy of the microfilm of the original deposit receipt was produced during the course of the trial and the original deposit was paid on the 20th June 1968. The deposit was in the name of Mr. Fung. I was told by Mr. Wong Tak Tong, a senior clerk with the Hong Kong Electric Company that the piece of paper which is stamped "refunded" and forms part of the photocopy in exhibit "P-6" in the case would have been signed at the date of issue, namely, the 20th June 1968. The signature there appears to have a remarkable similarity to the signature appearing on the Tenancy Agreement and therefore it seems clear that Mr. Fung must have signed this at the time. Mr. Fung gave evidence that the question of deposit for the electric payment was a matter which was primarily handled by his wife. Both Mr. and Mrs. Fung gave evidence that it was their recollection that the original supply of electricity was in the name of the plaintiff but that in September 1968 the consumption of electricity had exceeded that which had been expected and they were requested to increase the deposit. Having been so requested, they thought it appropriate that the supply of electricity should be put in their own name. Mr. and Mrs. Fung's recollection as to the events which occurred in 1968 has proved to my mind remarkably accurate. Their evidence which was initially not supported by documentation has in many respects been verified by contemporaneous documentation which subsequently emerged during the course of the trial. Indeed it has been shown that in September 1968 the deposit was increased; this is shown not only by the cheque book stubs which Mr. Fung has kept but by the records of the Hong Kong Electric Company. It is clear, however, that the initial supply of electricity from 24th June 1968 was in fact in Mr. Fung's name. 5. In view of the clarity of Mr. and Mrs. Fung's evidence, I am not at all sure, however, that Mr. Lau did not have more to do with arranging the initial supply of electricity than has been conceded. Mr. Hung, the General Manager of the Plaintiff gave evidence. He has been with the Plaintiff since about 1973. He said that it was never the Plaintiff's policy to install electric meters in the Plaintiff's premises, this was always left to the first tenant to arrange. He did however indicate that such arrangements were commonly made by the electrical contractor. His evidence was also clear that all the wiring in the premises would have been ready for connection to the electric meter and that a tenant was never allowed into premises to install wiring prior to his lease taking effect. On this evidence, I am not satisfied as to who actually applied for the connection of the electric meters. I am sure that the application was made in Mr. Fung's name but more than that the evidence is not satisfactory to establish; at this distance I do not think that anybody would ever know the full facts. 6. Be that as it may, from the records of the Electric Company relating to the 2 meters which form part of exhibit "P-6", it is clear that the meters were installed on the 24th of June 1968. This would have meant that in the flat there were ready pre-existing wiring both for ordinary lighting and for power. I am satisfied on Mr. Hung's evidence that that wiring must have been installed by the Plaintiff and that the Defendant would not have been permitted to have wiring installed prior to his taking possession. 7. Mr. Fung gave evidence that he signed the Tenancy Agreement and made out the cheque for and paid the necessary deposits in an office in Shing Yip Building in the presence of Mr. Lau alone. Mr. Fung thought that this was Mr. Lau's office - indeed it certainly was not anybody else's office. It is this indeed which caused me to believe that Mr. Lau's position must be regarded as that of a building superintendent and not a mere watchman. The photographs P1 were taken during the course of the trial in order to demonstrate the nature of the office used by Mr. Lau. I regret I do not find them particularly helpful in showing me what that office looked like 14 years ago. The room clearly was probably very much tidier when the building was new. Mr. Fung told me that in those days the room had a steel desk and chairs for people to sit round and did not have the various pieces of furniture which can now be seen piled up there. 8. In my view by allowing Mr. Lau not only to deal with the prospective tenants directly with regard to matters involving the Tenancy Agreement prior to the signing thereof, but to be the person who produces the Tenancy Agreement in his own office, the person in whose presence the Tenancy Agreement is signed, the person who instructs Mr. Fung as to the deposits required, the person who receives from Mr. Fung not only the rent but the deposits involved, the Plaintiff has been responsible for leading any reasonable man to the conclusion that Mr. Lau was a person in responsibility as regards tenancy matters and who could be consulted in respect of matters arising concerning the tenancy. I was told by Mr. Hung that Mr. Lau was only given responsibility in respect of the security and the cleaniness of the building. In view of the matters as I have related them, it is clear that Mr. Dau was in fact given, on this occasion at least, much greater responsibilities than those. If a Landlord arranges matters so that all the above matters are handled by his servant, he cannot, it seems to me, be heard to say that servant was a mere watchman whose duties extended no further than keeping the floor clean. Clearly they extended a great deal further. 9. I should interject here that it is clear that from 1969 onwards that Mr. Fung wrote to the Plaintiff company at its office address. This however started months later and cannot in anyway have affected what Mr. Fung thought in June and July of 1968. Nore importantly I do not find anything in the fact that at a later date Mr. Fung communicated in writing or on the telephone with persons at the Plaintiff's office which leads me to believe that Mr. Fung thought or should have realised that Mr. Lau had exceeded his authority in anything he said or did in June or July 1968. 10. Mr. Fung's cheque book stub shows that on the 28th June 1968 he paid a cheque for a total of HK$ 1,460 to the Plaintiff. This appears to have been made up as follows, 1 month's rental in advance at HK$ 460; 2 month's rental deposit; HK$ 50 deposit in respect of water charges which is shown on the record card "P-7" and a further HK$ 30. Although the sum of HK$ 30 cannot be accounted for too precisely, it appears to have been in respect of stamp duty since by clause 4(k) of the Tenancy Agreement, that was to be borne by Mr. Fung and the stamp duty on the copy of the agreement is shown as HK$ 28 and 1 am told that a HK$ 2 stamp duty would have had to have been paid in respect of a duplicate of the original agreement. This would therefore coincide with the calculation which appears on the opposite side of the page of the cheque book stub to the insertion in respect of the cheque in question. I would note in passing that the stamp duty was paid apparently on the 8th of July 1968 being the date of the stamp. Mr. Fung said that he did not arrange for the stamping, so it must have been done by the Plaintiff and it is therefore reasonable to suppose that apart from the time when he signed the agreement, Mr. Fung would not have had a copy of it in his possession until after the 8th July 1982. From the date of Mr. Fung's cheque book stub it is reasonable to conclude that Mr. Fung in fact signed the Agreement and paid the deposit on the 28th June 1968. 11. The tenancy took effect from the 1st July of 1968 and that, on Mr. Hung's evidence, is the date upon which Mr. Fung would have been allowed into possession. Mr. Fung has lived there ever since with his wife and children. Two things about the promises should be noted for the purposes of these proceedings. 12. In the first place, the windows of the premises were constructed for air-conditioners. There was a particular section of the window frame which was made so that an air-conditioner could be fitted without making any alteration to the window frame. This can be seen on the photographs on page 19 of bundle D1 which shows that there are a few windows in the block of fiats in question where air-conditioners have not been installed. The place where an air conditioner is to go is clearly seen in at least one of the lower windows where the angle of the photograph allows it. There would indeed be no other point in constructing a window in that way. The windows of Mr. Fung's flat were clearly meant for air-conditioners. These are indeed standard constructions of windows where air-conditioners are intended and similar constructions can be seen in the photographs which are P1 which show the rear quarters abutting the office referred to. Three of the windows in the flat were constructed for the reception of air-conditioners and therefore consituted in themselves in open invitation to insert air-conditioners therein. 13. In the second place there was also a ready supply of power as opposed to ordinary electricity. It is true the power could have been used for a number of purposes such as electric cookers as well as for air-conditioners. The presence of electric cookers in Hong Kong is however very much less prevalent than air-conditioners and in view of the fact that no complaint has been made in this action about any additional wiring used in respect of the air-conditioners, I can only assume that there was already present in the flat wiring for use with air-conditioners. Furthermore, no evidence has been given in this case that any additional wiring was made in the flat, so that the air-conditioners could work. As I refer to below the Plaintiff has inspected the flat to look at the air-conditioners. The only inference I can draw from this is that no extra wiring was put in so that the air-conditioners could work. 14. Mr. Fung says that on the 3rd or 4th of July 1968, the first air-conditioner in the flat was put in. There was no challenge as to this and I believe it. Mr. Fung also says that he had initially considered having the air-conditioner high up, no doubt in an effort to cool the room without having the cold air blowing directly at chest level. Mr. Funk, says that he consulted Mr. Lau as to whether the air-conditioner could be put high and that Mr. Lau told him to put it at the bottom of the window frame, pointing out that there was a space there for the air-conditioner. I am satisfied that Mr. Fung is absolutely correct in this respect and that indeed he put the air-conditioner there because he considered that the landlord was telling him to put the air-conditioner there. I am satisfied that Mr. Funk, must have considered that Mr. Lau's instructions to put the air-conditioner in the place meant for it would have applied to each of the other 2 rooms had Mr. Funk, then wanted to put air-conditioners there. 15. In 1971, the air-conditioner from the living room was moved to the bedroom and a new air-conditioner was bought for the living room. In 1977 the air-conditions in the bedroom was replaced and at page 9 of exhibit "D-1" is a copy of the receipt for the new air-conditioner. 16. The Fung family lived happily with their air-conditioners from 1968 until 1981. No complaint was ever made about them. From time to time the Plaintiff and its workmen had to come in to do various things to the flat and make sure that the Fungs did various things to the flat to keep it in tenantable repair but nobody ever said anything about the air-conditioners. As time went by, the situation was reached whereby I am told that something like 48 out of 55 living units in Shing Yip Building had air-conditioners installed. One only has to look at the photographs of the building to see that obviously everybody who wants an air-conditioner has got one. Mr. Fung now pays a rental of $1,056.00 per month and Mr. Hung gave evidence which was uncontra dieted that he thought the rental on the open market with vacant possession would be about $3,000.00. For the purposes of this case I would accept that. 17. Mr. Hung said in evidence that the Plaintiff was not concerned about air-conditioners until 1981. They were quite happy to let things go on without taking any steps to see whether tenants had put in air-conditioners which they did not know about. In 1981 it appears that another building owned either by the Plaintiff or by one of its associated companies in Leighton Road had difficulties. It appeared that in one of the flats the tenant had installed a number of large power air-conditioners and this was causing fusing. As a result of this incident, the Plaintiff took some interest. In September of that year, Miss Mar Kar Dei from the Plaintiff's rental department was instructed to make a survey of the air-conditioners of Shing Yip building and to see whether there were any air-conditioners installed without consent. She gave evidence. She told me that she had to do no more than go out into the street near the Plaintiff's office and take a look. She at once saw that there were 4 or 5 flats which had air-conditioners in respect of which no consent had been given. That was in September of 1981. As a result the Plaintiff did not pay in the Defendant's cheque for rent for October 1981. However the Plaintiff even at that stage did not inform the Defendant. Miss Mak decided that she should go and take a look at the premises. Instead of informing Mr. Fung that she wished to inspect the installation of the air-conditioners which she could clearly see from the street, she telephoned Mrs. Fung apparently in the context of a previous complaint that the television antenna had not been working satisfactorily and asked if she could be allowed to go to the premises with workmen to check on "the electrical installations". She said in her evidence that she discovered an air-conditioner installed in the sitting room, that was on the 9th of October. 18. On the 10th of October Mr. Hung, the General Manager of the Plaintiff wrote to the Defendant. That letter made reference to clause 2(e) of the Tenancy Agreement, quoted the wrong date of the Agreement, and in bald terms required the air-conditioners to be removed. Not surprisingly. the Defendant consulted his solicitors. On the 15th of October they replied straight away informing the Plaintiff in broad outlines that the air-conditioners were located in accordance with Mr. Lau's instructions of as long ago as 1968. The Plaintiff's solicitors then wrote the letter of the 11th of November 1981 denying that fact. In view of the fact that Mr. Lau had long since left the Plaintiff's employment and cannot now be traced still less did he give evidence in this Court, that denial was clearly founded upon a basis of ignorance. The letter then went on to say that the Plaintiff had exercised its rights of forfeiture. The case therefore came before this Court. 19. The first thing which falls to be considered is as to whether the placing of the 2 air-conditioners constituted breaches of the Tenancy Agreement. As I understand it, a Tenancy Agreement has to be construed on the same basis as all other documents. It has to be construed as of its date and initially has to be construed on its own and without reference to the infringements complained of. Clause 2(e) of the Tenancy Agreement provides that the tenant agrees: -
20. No complaint was made in respect of requirement of any additional electrical main wiring and indeed Mr. Hung's evidence was that the wiring in Shing Yip Building was sufficient for all the air conditioners that were there at present. 21. The complaint was that Mr. Fung had installed and altered fixtures and installations and had made alterations or additions to the electrical wiring and installations. In respect of the latter I would indicate that in my view the words "electrical wiring and installations" as appearing in the said clause have to be construed together and that the installations referred to are electrical installations. The point is not beyond dispute but in any event it does not affect the decision which has to be arrived at in this case. 22. Mr. Mok on behalf of the Plaintiff argued that the term installed and installation were broad terms. I agree that the terms are broad, I consider that they are so broad that on their broad and literal construction, the wording of this clause would clearly comprehend within its scope such items that results would be produced which are repugnant and absurd. Many items of ordinary household equipment can be considered as installations. A television set is one and one only has to make reference to newspaper advertisements to see that the word install is frequently used in respect thereof. A refrigerator, a washing machine, a cooker and the like are all others. In my view I do not consider that a simple reference to the literal construction of these words can therefore suffice. Since no other interpretation would be open to me, I consider that each and every item which is alleged to be an installation falling within the clause has to be considered separately. Mr. Mok urged upon me that the Court's interpretation in the case of Hong Kong and Shanghai Bank Hong Kong (Trustee) Limited v. Chan Lai-wah [1981] H.K.L.R. 570 requires that the literal meaning of the wording must be given effect to and that the installation of the 2 air-conditioners the subject of the action must be considered as breaches. As I have indicated I consider that to do so in this case would be absurd. 23. A household air-conditioner of the type with which we are concerned is an everyday household appliance. It can be, and is, found in every type of dwelling throughout Hong Kong. Whereas I appreciate that in 1968 air-conditioners might not have been quite so prevalent as they are today, I think it fair to say that still in those days they must have been something which one could have reasonably expected that a tenant would want to have. Here then was a flat which Mr. and Mrs. Fung moved into with windows constructed in a manner such that they called out for the insertion of air-conditioners. Nothing had to be done to the construction or shape of the window frames or windows to enable these air-conditioners to be put in position. Furthermore, the wiring for the air-conditioners must as I have stated been in the premises when the Fungs moved in. The flat itself therefore constituted an open invitation to put air-conditioners of the type which the Fungs have in the places in which they have them. I do not consider that the words of clause 2(e) cover air-conditioners of the type which have been placed, nor the placing of those air-conditioners in the manner in which they have been so placed nor the placing of the supporting struts which are simply ancilliary to the whole process. Of course if other types of air-conditioners were involved, the position might be very different; it would also be different if the windows were required to be altered to take the air-conditioners or if a bulky air-conditioning plant which required the walls to have holes drilled in them to be installed were in issue. These are simple ordinary household and domestic air-conditioners of the type which the building was clearly constructed to hold. I do not therefore consider that any reasonable person reading the tenancy the agreement in the July 1968 would consider that the introduction of such air-conditioners falls within clause 2(e). 24. Mr. Hung gave evidence that between 1968 and 1972 ten applications were received by the Plaintiff for permission to install air-conditioners. It emerged in cross-examination however that for the most part those applications were concerned with altering the window frames. There were also a further 10 Tenants including Mr. Fung, who had air-conditioners without consent from a time unknown, but had subsequently successfully applied for consent. I find these figures of little real help since I do not know how many previous tenants had air-conditioners without consent and have in the intervening time moved away. I certainly do not consider that this evidence, the effect of which was curtailed by cross-examination, shows any general acceptance of clause 2(e) as relating to air-conditioners of the type at present under consideration. 25. It it had been the intention of the parties to control the use of any air-conditioners such wording could clearly have been inserted in the Agreement. In my view, if a Landlord does want to so restrict a tenant, the matter should be stipulated in clear and unambiguous language. On my reading of clause 2(e) the parties have not even attempted to cover the situation at present under consideration. Mr. Mok urged me that if it were to be held that the locating of the present air-conditioners was not in breach of clause 2(e), the Plaintiff would have no means of controlling the use of any air-conditioners in the block of flats and this would have serious repercussions because the Plaintiff needs to control the amount of electricity consumption to make sure that it does not exceed the wiring capabilities. This set of circumstances is adequately catered for in clause 2(e) and if air-conditioners were installed such that they would require additional electric main wiring. then this is provided for and the Plaintiff can control it. There was in this cape no suggestion that the wiring of the premises was not adequate and indeed as I have stated Mr. Hung gave evidence to the contrary. 26. Mr. Mok also urged me that if the Landlord were to withhold consent to the use of air-conditioners in a manner that were unreasonable the tenant could apply to Court for a declaration that the consent was being unreasonably withheld. I asked whether there was any authority for this proposition but there is apparently none. I do not think that a tenant could so apply. In England there is a statutory provision. In Hong Kong there is none. The Landlord's consent appears to me to be an absolute discretion and not based on reason. This is not a factor therefore which would encourage me to find in favour of the Plaintiff. 27. Should I be wrong in the foregoing, I turn to consider whether any of the defences which have been raised on behalf of the Defendant are applicable. In the first place it has been said that there has been actual consent by the landlord for the installation of the air-conditioners. That consent was given on behalf of the landlord by Mr. Lau. I feel considerable sympathy with this argument particularly because the Plaintiff clearly vested Mr. Lau with a great deal of implied and apparent authority at the time when the tenancy agreement was negotiated and signed. As I have stated previously, the Plaintiff may have always regarded Mr. Lau as being in charge of security and cleaniness at the Shing Yip Building and another of their buildings. In the circumstances I cannot hold that there has been actual consent by the Plaintiff although I do hold that it is the Plaintiff's fault that Mr. Fung thought that he had actual consent. I consider that the circumstances of the case were clearly such that the Plaintiff either temporarily for the purposes of this one letting or else permanently had put Mr. Lau in such a position that he should have reported the positioning of the air-conditioner in the living room if he had not got authority to have the same positioned there. I have no doubt that it is right to attribute Mr. Lau's knowledge of the actual positioning of the air-conditioner in the living room to the Plaintiff. Mr. Lau had clearly on the occasion of this one letting been vested with such authority that this conclusion is inescapable. I make this holding notwithstanding that the Plaintiff may never have vested Mr. Lau with such authority on any other occasion. About the latter fact however I make no finding. 28. The next point taken on behalf of the Defendant is that the Plaintiff has waived any breaches of the Tenancy Agreement. Following upon my findings I find that the Plaintiff certainly did have knowledge that the Defendant had an air-conditioner in the Living room from 1968 onwards. That knowledge was gained by Mr. Lau in circumstances where his knowledge in my view constitutes knowledge of the Plaintiff. I believe that it is clear that neither Mr. Lau nor Mr. Fung ever had in their minds any notion that consent was required for the installation of air-conditioners. Admittedly then Mr. Lau did not actually know that Mr. Fung did not have consent Mr. Mok argues that in those circumstances Mr. Lau could not have known that there was a breach of the Tenancy Agreement. I do not think that matters, what matters is that the Plaintiff knew that there was a breach of the Tenancy Agreement, it knew it through a combination of knowing that the Plaintiff itself had not given written consent and it knew it because of Mr. Lau's knowledge which for these purposes is knowledge of the Plaintiff. In those circumstances I hold that by continuing to treat the tenancy subsisting from 1968 until 1981 and all that that has entailed in the way of acceptance of rent and increases in rent as shown on P7, the Plaintiff has most certainly waived any breach in respect of the air-conditioner in the living room. I should also mention that it is very clear from the history as I have recited it, that had Mr. Lau's mind been directed to the fact he must have known full well that Mr. Fung could not by the 3rd or 4th of July have had written consent from the Plaintiff, that would have been apparent from the conversation if nothing else. 29. The Plaintiff has raised the point that under clause 4(c) it is provided that: -
30. It is argued that this provision would prevent the acceptance of rent by the Plaintiff as constituting a waiver and would not therefore prevent the landlord exercising its right of forfeiture I was told that there was no Hong Kong authority on the point. At first I was attracted by the submission that the parties could contract in any way they wished and if they wished to contract so that payment of rent would be without prejudice to the exercise of the right of forfeiture then there was nothing to prevent that. On further consideration of the matter and of the authorities and in particular Rex v. Paulson 1921 A.C. 271 and David Blackstone Limited v. Burnetts (Westend) Limited 1973 1 W.L.R. 1487, I consider that this clause cannot be construed as permitting the landlord to affirm the tenancy by accepting rent and then years later exercising his right of forfeiture based upon some earlier breach. My reason for so saying is that the acceptance of rent constitutes the continuation of the tenancy and the acknowledgement not only by the tenant of the landlord as the proprietor of the premises but it also constitutes an acknowledgment by the landlord of the tenant as tenant. I do not consider therefore that the landlord to the lease. He may either determine the lease in respect can blow hot and cold with respect of a particular breach but if he elects to keep the tenancy in existence then that election must bind him. The passage in Rex v. Paulson on page 323 to which my attention has been drawn appears to me to cover the present situation as much as it covers that. It may be that a wording of a clause could be devised whereby it is agreed between the parties that any payments after a breach would not be regarded as rent but there would clearly be a number of factors to be taken into consideration in drafting such a clause. Nevertheless I do not consider that the present clause in present circumstances can operate in favour of the Plaintiff to allow the Plaintiff after this length of time to exercise its rights of forfeiture. 31. Quite irrespective of the defences of consent and waiver, however, Mr. Lee relies upon the defence of acquiescence on which footing I consider that the Defendant in this case must have a sure and irrefutable defence. I bear in mind at this juncture that the Plaintiff's right is a legal right. Legal rights cannot be whittled away except on strong grounds. In the last century Fry J laid down 5 criteria which he said were necessary, see Willmott v. Barber (1880) 15 ch. D.96 at page 105. Translating his words into the present case, the 5 criteria are: -
32. He said that nothing short of those 5 criteria would suffice. More recently in the case of Shaw v. Applegate 1977 1 W.L.R. 970 the Court of Appeal in England has had occasion to examine the doctrine. It adopted the words of Sir Raymond Evershed M.R. in Electrolux Limited v. Electrix Limited 71 R .P .C. 23 were he doubted that all 5 requisites need be present. The Court of Appeal consisting of Buckley, Goff, and Shaw L JJ. was a strong Court and by no means given to a light disregard of authority. They said that the real test must be whether on the facts of the particular case, the situation has become such that it would be dishonest or unconscionable for the Plaintiff, or the person having the right sought to be enforced, to continue to seek to enforce it. 33. I have no doubt whatever in this case that it would be unconscionable for the Plaintiff to seek to exercise its right of forfeiture in the present case. In coming to this conclusion, I consider that I have given fair weight to every factor in this case, but some of the factors are listed out below without any particular emphasis on the order: -
34. Although I place little reliance upon it I note that Mr. Fung gave evidence that he believed a Mr. Ho, who he identified as the Managing Director of the Plaintiff and whom he identified as sitting in Court, used the Penthouse on the roof of the block of flats and must have seen Mr. Fung's air-conditioners when going in and out of the building if he had bothered to notice them. Mr. Ho did not return to the Court much after that was said and certainly did not come to the witness box. 35. I am not unmindful of the fact that if the Plaintiff did not consider the matter important enough to warrant its attention for 13 years, it is with some audacity that it approaches the Court to exercise a right of forfeiture at the end of such lengthy period. 36. In the result therefore I consider that the Plaintiff has acquiesced in the installation of the air-conditioners in the places mentioned and has by the long period of delay evinced an intention of not relying upon the covenant in respect of air-conditioners of the type complained of in the position complained of. 37. Turning to the question of Laches I do not propose to say any more on this than I have already said in respect of acquiescence. The delay of 13 years in the making of any complaint with respect to the air-conditioners would probably on the cases be not sufficient without more to raise the question of Laches. As there is more I consider that the issue is so irrevocably bound up with acquiescence that I need at this stage say no more. 38. Having reached the conclusion that I have, it is unnecessary for me to make any decision in respect of relief from forfeiture and, indeed I would in normal circumstances have considered it probably undesirable that I should say anything on the subject. However, since both Counsel have indicated that I should make some finding in respect thereof, I will proceed to do so. It is clear that the Court can grant relief from forfeiture and I consider that in the present circumstances it would be manifestly right to do so. 39. I note in passing that the Plaintiff is less entitled to the Court's sympathy by reason of the way it has conducted itself with respect to the air-conditioners under consideration. Although Mr. Hung said that he would have no objection to air-conditioners of the type complained of located as they are in the places in which they are located, the letters to which I have referred require at the minimum that the Defendant should take out those air-conditioners. When questioned as to why it had not been suggested in the letter that the Defendant should apply for written consent to keep the air-conditioners, Mr. Hung said that the Plaintiff did not want to give the impression that the consent would be forthcoming.Whether or not he though a letter could be drafted suggesting that the Defendant should apply for consent without automatically conceding that the consent would be forthcoming is a matter for Mr. Hung. At that juncture, however, the Plaintiff not only knew of the installation of air-conditioners but had inspected them. The Plaintiff must therefore have known whether or not it would be prepared to give its written consent for that installation subject to the payment of the all important HK$ 150 deposit which the Plaintiff requires for giving its consent. I would consider that the Plaintiff would be entitled to more sympathy had it conducted itself in a more considerate manner towards the tenant. 40. The only condition that I would consider imposing is that the Defendant should pay a deposit of HK$ 150 per air-conditioner installed as a deposit for the safe replacement of the window glass upon removal of the air-conditioner. Representation: Mr. Y .C. Mok instructed by Messrs Hampton, Winter & Glynn for plaintiff. Mr. Sammy Lee instructed by Messrs Della Chan & Geoffrey Hui for defendant. |
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