Chu Pak Sang v. Law Yin Foon and Others

Case No.LDPA 6/1981

Court

Lands Tribunal

Date29 Sep 1982

Judge—

Case Document

100%Judiciary

LDPA000006/1981

Landlord and tenant - Pre-war Part I premises - application for order for ejectment of tenants - consent order for stay requiring payment of rent to applicant - applicant not registered owner but entitled to receive rent - whether tendering non-negotiable cashier's orders to applicant but in name of registered owner, compliance with consent order - extended statutory definition of "landlord" - Sections 2, 33(l) Landlord and Tenant (Consolidation) ordinance, Cap. 7.

IN THE LANDS TRIBUNAL OF HONG KONG

Application No. K.6/81

IN THE MATTER of Part I of the Landlord and Tenant(Consolidation) Ordinance, Cap. 7 and an application under Section 33(1) thereof.

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BETWEEN
	CHU PAK SANG	Applicant
	AND
	LAW YIN FOON	1st Respondent
	CHU SAI WONG	2nd Respondent
	HUNG MIN	3rd Respondent

Coram: TRIBUNAL: His Honour Judge Cruden, President and M.W. Phillips, Esq., Member, Lands Tribunal.

Date: 29 September 1982

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JUDGMENT

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1. On the 2nd day of July 1981 the applicant, pursuant to Section 33(1) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, applied to the Tenancy Tribunal for an order for ejectment of the respondents from the suit premises situated at No. 131 Tai Sun Back Street, Cheung Chau Island, New Territories, Hong Kong. On the 25th day of August 1981 the respondents filed Grounds of Opposition and the defended application came on for hearing before the Tenancy Tribunal on the 9th day of November, 1981.

2. At the hearing before the Tenancy Tribunal both the applicant and the respondents, all of whom had instructed solicitors, were also all represented by Counsel. At the end of the hearing the proceedings were, by consent, stayed in terms of the following consent order :

"

By consent, the present proceedings be stayed for the purposes of carrying but the terms contained in the Schedule herein.

	Schedule
1.	The 1st Opponent do pay to the Applicant arrears of rent as from the 6th Lean Lunar month in 1979 to the end of the 10th lunar month in 1981 in the total sum of $3,080 payable in the following manner : -
	(i)	The 1st instalment in the sum of $580 be paid on or before the 1st day of the 11th Lunar month in 1981;
	(ii)	The balance in the sum of $2,500 be payable in 5monthly instalments of $500 each payable on the 1st day of each and every lunar month commencing from the 1st day of 12th lunar month in 1981.
2.	The 1st Opponent do pay through her solicitors to the Applicant's solicitors a sum of $1,000 as agreed legal costs within 14 days from today.
3.	The 1st Opponent do pay a sum of $160 as rental for the suit premises for each lunar month payable on the 1th day of each lunar month as from the 11th lunar month in 1981
4.	The 1st Opponent do pay all rates for the suit premises due and payable to the Hong Kong Government when the same should fall due.
5.	The Applicant shall pay all property iaefor?? the suit e premises payable to the Hong Kong Government when the same should fall due starting from 1981.
6.	The 1st Opponent undertakes not to assign, sub-let or part with possession of the suit premises or any part thereof and warrants that she had not done so.
7.	The 3rd opponent warrants that he is not a subtenant of the 1st Opponent but has only been her licensee.
8.	In default of the Opponents in complying with any of the aforesaid terms, the Applicant be at liberty to apply and be granted Judgment for possession in the action herein.
9.	Liberty to restore on giving 7 days' notice for the purpose of enforcing the terms herein."

3. The consent order was signed on the 9th day of November 1981 by Counsel for the applicant and Counsel for the respondents. The respondents are referred teas "opponent's" in the consent order that being their correct description until the Lands Tribunal assumed jurisdiction in this matter on the 11th day of June 1982.

4. On the 15th day of February, 1982 the solicitors for the applicant applied to have the application restored for hearing on the ground that the respondents had defaulted in compliance with the terms of the consent order under which the proceedings had been stayed. Earlier on the 10th day of December 1981 the Landlord and Tenant (Consolidation) (Amendment) (No. 2) Ordinance No. 76/81 had been enacted. This Amendment provided, inter alia, that the Tenancy Tribunal would be abolished and its jurisdiction under Part I transferred to the Lands Tribunal, on a day to be appointed by the Governor by notice in the Hong Kong Gazette. Subsequently the Governor appointed the 11th day of June 1982 as the day when jurisdiction under Part I was transferred to this Tribunal and notice thereof was published on the 28th day of May 1982 in Volume CXXIV Hong Kong Gazette under Legal Notice No. 185 of 1982. We therefore on the 11th day of June 1982 assumed jurisdiction for this application.

5. The application was restored and came before this Tribunal on the 23rd day of June 1982. At that hearing the applicant's solicitors had instructed Counsel, who appeared for the applicant, but the respondents now appeared in person. The applicant sought an order for ejectment of the respondents on the ground that they had failed to comply with the terms of the consent order by defaulting in paying the rent thereunder. The respondents asserted that they had tendered rent which was rejected. As there was a dispute whether there had been compliance with the terms of the consent order we heard evidence on the issue of payment of rent.

6. The applicant gave evidence and conceded that he was not the registered owner of the suit premises. He stated that the registered owner was a Mr Man Ping Chuen who left Hong Kong in 1915 to go to Singapore. When he left he asked the applicant's grandfather to look after the suit premises and collect the rent. The applicant had now suceeded to that responsibility and had collected rent from the 1st respondent for more than 10 years. He did not account to the registered owner for the rent but kept it for himself. However, he stated that he still regarded Mr. Man Ping Chuen as the owner and if he returned to Hong Kong he would feel obliged to account to him for the rent. He agreed that in the prior proceedings on the 9th day of November; 1981 he had stated in evidence that Mr. Man Ping Chuen was the registered owner.

7. Clearly the terms of the consent order required payment of rent bye the 1st respondent to the applicant. The 1st respondent stated in evidence before us that in compliance with that order she had tendered Cashier's Orders to Madam Chiu wai Man who was the sister of the applicant and who normally collected rent on behalf of the applicant. Both the applicant and Madam Chin agreed that Cashiers Orders had been tendered by the 1st respondent to Madam Chiu but the latter had returned them to the 1st respondent in accordance with the applicant's instructions. The reason both the applicant and Madam Chiu gave for the rejection of the Cashier's Orders was that they were in favour of "Man Ping Chuen" and not the applicant.

8. Cashier's Orders are, of course, a better means of payment than a personal cheque as they are drawn by the Bank itself and are not likely to be dishonoured. However, they are usually payable only to the payee or his order and not to bearer. This was the case in respect of these Cashier's Orders.

9. The explanation of the 1st respondent for having the Cashier's orders made out in the name of Man Ping Chuen was that during the prior proceedings the applicant had stated that he was not the registered owner and described the registered owner as Mr. Man Ping Chuen. Hence the Cashier's Orders were made payable to the owner. They were tendered to the applicant but he was unable to negotiate them as they were not payable to him. So they were returned.

10. Finally, the respondents denied that they had consented to the order, the terms of which were signed by their Counsel, when they were represented on the 9th day of November, 1982. At the end of the evidence before us on the 23rd day of June 1982 it appeared that two possible questions of law had arisen. First, had payment being properly tendered but wrongly rejected? Secondly, was it open to the respondents to challenge in these proceedings the contents of and their consent to the prior order?

11. These were not necessarily simple questions and the Tribunal considered that the respondents should be given the opportunity of reinstructing solicitors if they wished to doe so. In addition, at that time Legal Aid was being extended to proceedings before the Tribunal under Part II and even though this was a Part I application the respondents might wish to consult the Director of Legal Aid.

12. For these reasons the proceedings, after all the evidence had been adduced, were adjourned sine die to allow these matters to be considered with liberty to restore in order that final submissions could be made if the dispute was not resolved. A condition of the adjournment was that payment of rent in terms of the prior consent order should be made into the Supreme Court in the absence of any Suitors Funds Regulations or other provisions in the Lands Tribunal. To enable this to be done the exhibited Cashier's Orders were released to the 1st respondent so that they could be returned to the drawing Bank in exchange for replacement Cashier Orders which could be negotiated by the Supreme Court. The Cashier's orders were so released and subsequently payment was made into Court by the 1st respondent.

13. The adjourned application was restored for hearing and came before the Tribunal again on the 28th day of September, 1982. The respondents continued to be unrepresented and it was now clear that the Director of Legal Aid was not empowered to grant legal aid to parties to a Part I application. The new extended Legal Aid provisions being limited to Part II.

14. All the respondents spoke and understood Cantonese and Tribunal again explained the position and the legal questions which seemed to have arisen. The respondents were invited to make final submissions. Perhaps understandably all they wished to say was to repeat elements of their evidence at the earlier hearing, namely that the applicant was not the owner and rent had been tendered to him in the name of and on behalf of the registered owner. So the respondents considered they were not in default.

15. Counsel for the applicant submitted that the terms of the consent order on the 9th day of November 1981 were signed by Counsel for the respondents on their behalf after the fact that Mr. Man Ping Chuen was the registered owner had come up in evidence. It was submitted that it was now too late for the respondents to attempt to attack the status of the applicant. For under the consent order the respondents were liable to pay the rent to the applicant. Payment had not been made to the applicant. He had been handed Cashier's Orders in the name of another person which could not be negotiated.

16. We agree that in these proceedings the consent order is binding on the respondents. Payment under that order, we also agree, was to be made to the applicant and not to the registered owner. Payment has not been made to the applicant. Even if the respondents were able at this late stage to mount an attack on the applicant's status they would have had to overcome the extended definition of "landlord" in Section 2 of the Ordinance which provides:

Landlord" includes any person, other than the Crown who is from time to time entitled to receive rent in respect of any premises and in relation to a particular tenant means the person entitled to receive rent from such tenant;

17. So putting the evidence at its most favourable to the respondents they had in the past paid rent to the applicant who was entitled to receive the rent under the earlier arrangement between the registered owner and the applicant's grandfather. In that event it matters not that the applicant is not the registered owner nor whether he is liable to account or has accounted for the rent to the registered owner. We would also record that we were referred to Spencer Bower and Turner 'Estoppel by Representation' (2nd Edn. ) 193, 195 which sets out the circumstances where payment of rent is an acknowledgment by the tenant of the landlord's title which he is accordingly estopped from disputing. However, in view of the respondents consent to the prior order these are matters we do not further have to consider. For the consent order is itself decisive of the applicant's entitlement to receive the rent ordered to be paid thereunder. He has not been paid that rent.

18. In these circumstances the applicant is entitled to the order for ejectment sought against all the respondents. There will also be an order for payment out to the applicant of all monies paid into Court by the respondents in terms of our order of the 23rd day of June 1982. There will be no order as to costs. Liberty to apply-in respect of any other consequential matters is reserved.

DATED this 29th day of September, 1982.

(Judge Cruden)	(M.W. Phillips)
President, Lands Tribunal	Member, Lands Tribunal

Representation:

Mr. Patrick Chan instructed by U.K. Lore & Co. for applicant.

Respondents in person.