Tang Miu-ying v. Wong Chung-yau

HCSA000001/1980

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Coram: Cons, J.A., Yang and Bewley, JJ.

Date of Judgment: 22 May 1980

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JUDGMENT

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Yang, J.:

1. The appellant was the principal tenant of the premises known as 229 Gloucester Road, 3rd floor. The head landlord was a company known as Man Chi Enterprises Ltd. Madam Tang Miu-ying, the principal tenant, sublet to Mr. Wong Chung-yau, the respondent in this case.

2. In the Small Claims Tribunal the sub-tenant succeeded in his claim for the return of four months' rent plus one month's rent deposit which he had paid to the principal tenant. The four months' rent covered the period 1st April to 31st July 1979, at a rent of $410 per month, and the one month's rent deposit was utilized to cover the rent for the month of August. The total amount therefore was $2,100, which was subsequently reduced to $1,500 on review in the Small Claims Tribunal because there was an agreed amount for water charges, electricity and so on which the sub-tenant was obliged to pay.

3. Before the commencement of proceedings in the Small Claims Tribunal there had been proceedings in the District Court between the head landlord as the plaintiff, and the principal tenant and sub-tenant as defendants. I shall not go into the details of those proceedings; suffice it to say that terms of settlement were reached between the parties. In the terms of settlement between the head landlord and the principal tenant, as well as in those between the head landlord and sub-tenant, the head landlord waived all arrears of rents and/or mesne profits from 1st April 1979 to the 31st October 1979 on condition that vacant possession of the suit premises be delivered by the principal tenant and the sub-tenant on the 31st October. We do not know when the terms of the settlements were finally agreed or when the court order for possession which was made upon them would have taken effect. However it is clear from the draft terms of settlements which were in evidence before the Tribunal that the earliest possible date would have been some time in August.

4. Counsel for the sub-tenant argues that for two reasons the settlements should be considered to give possession retrospectively as from the 1st August. The first is that the landlord had earlier issued a notice to quit which purported to expire on the 31st March. The second is the construction of the settlements themselves.

5. We see no force in either point. By reason of sections 52 and 53 of the Landlord and Tenant (Consolidation) Ordinance the notice to quit had no effect, and we find nothing in the wording of the settlements to indicate retrospective intentions. The tenancy of the principal tenant must have continued at the very least until some date in August. It follows that she is entitled to receive and retain rent from the sub-tenant up to the same date. The adjudicator was wrong to order her to return the rent and his order is therefore set aside.

Representation:

The appellant in person.

T. Lai (D.W. Ling & Co.) for the respondent.