Chau Chee-leung v. Lau Chak-po and Others
Read the full judgment text of DCCJ 8780/1979 on BabelCite. This District Court judgment was delivered on 14 July 1980.
1. The plaintiff CHAN Chee-leung is the registered owner of the Ling Name Building, 1st floor, Flat No. 8, No. 5 Cheung Ning Street, Kowloon, in the Colony of Hong Kong ...(illegible) on Kowloon in Land Lot 2152.
|
DCCJ008780/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 8780 OF 1979 -----------------
----------------- Coram: H.H. Judge Caird, D.J. Date of Judgment: 14 July 1980 ----------------- JUDGMENT ----------------- 1. The plaintiff CHAN Chee-leung is the registered owner of the Ling Name Building, 1st floor, Flat No. 8, No. 5 Cheung Ning Street, Kowloon, in the Colony of Hong Kong ...(illegible) on Kowloon in Land Lot 2152. 2. The 1st defendant by an agreement with the plaintiff commenced letting these premises on the 26th June 1977 and they agreed upon monthly rental of $800. The 2nd and 3rd defendants Sze Ping Fong and Choi Yue Shian respectively were sub-tenants to the 1st defendant. 3. The agreement between the plaintiff and the 1st defendant was based on the provisions of a rent receipt produced in evidence as exhibit Pl(a) and (b), (b) being the translation of the original chinese document. Paragraph 3 of this document reads as follows:
4. I introduce the words of paragraph 4 for completeness of the record, although no allegation has been raised in the pleadings as to a breach of this covenant:
5. The 3rd defendant, so I was informed from Counsels table has vacated the premises, and accordingly has no further interest in this action. 6. The plaintiff claims against the 1st defendant (a) possession of the premises (b) arrears of rent and/or mesne profits (c) further and other relief and (d) costs, and as against the 2nd and the 3rd defendants possession together with further and other relief and costs. The 1st defendant in a joint Statement of Defence prepared by a street letter writer claims that the subleting which took place was with the consent or knowledge of the plaintiff's wife Madam Lee Wai Ping. The 2nd defendant basically puts the plaintiff to strict proof of subleting without consent or kowledge. It is of interest that the request for Further and Better Particulars included a request "if the consent or knowledge was oral to state the time, date and place thereof". In response to this again as I understand the position in a letter written by a street letter writer, the three defendants stated that the consent was given orally at about 2 p.m. on the 20th of June 1977 at the 1st floor, Flat No. 8 Ling Name Building, No. 5 Cheung Ning Street Kowloon in the presence of the plaintiff, his wife Madam Lee Wai Ping, 1st defendant Lau Chak Po and his friend a Miss Lee Kit Li, and further this consent was under the 'consent and direction of the plaintiff'. 7. At this juncture it is worth that noting that under the terms of the rent receipt any consent to subleting did not have to be in writing. This in contrast to the terms of paragraph 4 referred above where consent to the alteration of premises requires written consent from the Landlord. In fact the plaintiff has never claimed that written consent is required for subleting. 8. At his juncture it is necessary to deal with a form of 'alibi' raised by the plaintiff. He stated in evidence (and confirmed by his wife) that they had on that date, the 20th of June 1977 travelled to Macau at about 10 a.m. in the morning. A visa application form for the wife was produced and the departure chop dated 20th of June was clearly shown on that document. It was further claimed that the wife's mother died in Macau the previous day and this was the reason for the journey. This claim was in the wife's testimony. The wife in her evidence referred only to herself travelling to Macau because of her mother's death whereas the plaintiff referred in his evidence in chief that they both travelled to Macau for this reason. I accept that in fact both the plaintiff and his wife travelled to Macau and departed Hong Kong sometime during the morning at about 10 am on the 20th June. The Original Agreement 9. Although the defendant's pleaded that the date the original agreement was negotiated was 20th June 1977 and the plaintiff has established to my satisfaction that he and his wife were absent from the Colony during the afternoon of that date, nevertheless it is quite clear that a process of negotiation did take place. The plaintiff and his wife claimed that the persons present at that meeting were themselves, the 1st defendant and his elder sister. It is denied by both of them that Lee Kit Li was ever present. On the other hand the 1st defendant Lau Chak Po claims that those present were the plaintiff, his wife, himself and Lee Kit Li. And Lee Kit Li called on the behalf of 1st defendant says that she accompanied Mr. Lau to the premises and that the plaintiff and his wife were present at this meeting and apart from the landlord and his wife she says 'there was another male present there'. It is not clear from the context of the evidence whether this other male person was Mr. Lau, the 1st defendant, or another separate person altogether. In the event I prefer the evidence of the defendant and his witness Miss Lee Kit Li that both of them were present at a meeting. And as I said earlier this meeting occurred sometime in June 1977 prior to the 26th. 10. The importance of this meeting is that a negotiation took place and I have to consider the diametrically opposed evidence of the plaintiff and his wife to that of the 1st defendant and his witness Lee Kit Li. It is clear that a rental was agreed at $800 per month. It is also clear that the question of subleting was discussed or at least raised because of the nature of the rent receipts. (Paragraph 3 referred to above) The plaintiff states that he made it quite clear there was to be no subleting. This is confirmed, not surprisingly, by his wife. Whilst on the other hand the 1st defendant claims 'I said I alone could not bear the rental for such a place, the landlord then said to me that I could sublet' (p.15) Lee Kit Li stated 'In the course of the negotiation Mr. Lau had mentioned that in the event of unpleasant business in the future so Mr. Lau asked the landlord to reduce the rental a bit.' Next question 'Did the landlord agree?' Then the answer: 'The landlord did not agree to the reduction of the rental but the landlord had mentioned that in the event of bad business Mr. Lau could sublet certain portion of the premises to another.' 11. I prefer the evidence of the 1st defendant and his witness Lee Kit Li and believe the plaintiff and his wife to be lying in this regard. I am fortified by this in that subsequently the 1st defendant informed the Landlord of his subleting. This was common ground (p.14 evidence of Lee Wai Ping - Plaintiff's wife) whether it was put to her that a communication of this nature would be out of character if subleting was prohibited. I also find it inconceivable that the plaintiff who visited the premises once a month to collect the rent failed to ascertain what was going on. The premises were used as a combination of domestic user and cottage industry. Sewing machines were present some work was done sewing jeans, and some work sewing flowers. The plaintiff claimed that his wife went to pick up rent on several occasions, she said that she never collected the rent but that she did pick up rating receipts. 12. There was clear evidence which I accepted from the 1st defendant and Lee Kit Li that a number of persons sublet these premises. The 1st was Lee Kit Li herself who is not a party to this action but I accepted her own and the 1st defendant's evidence that she is still a sub-tenant of the 1st defendant. I believed the 1st defendant and his witness that she commenced subleting a small room in the month of September 1977. I accepted further that in the month of November at about 9 p.m. she arrived back at the premises and saw the 1st defendant and the Landlord present. She opened the door herself with keys to the premises. Further I accepted that on occasion the landlord net Miss Lee and a Miss Hung in the premises and were introduced to them by the 1st defendant and that 'usual topics' were discussed. And further the landlord showed no sign of objection to what must have been obvious to him was a subleting of the premises. 13. To continue with the history of the premises; I accepted that a Madam Hung Yue Sin moved into the premises about a month after Miss Lee (p.25). She remained in the premises almost two years before she moved out, in July 1979. That the 2nd defendant moved in as a sub-tenant on the 26th August 1979 and the 3rd defendant on the 3rd September 1979 (p.16 1st defendant's evidence). 14. There was a great deal of evidence relating to negotiation for the tenant and the sub-tenants to vacate. This evidence I consider to be irrelevant to the issue which I have to determine. 15. Summarizing from the foregoing, I accepted the defence evidence that there was a conversation amounting to consent to subleting as related by the 1st defendant and Miss Lee Kit Li. This consent was couched in general terms and was given consequent upon the 1st defendant asking what would happen if business went bad. Submissions of the parties 16. Mr. Hoosen for the plaintiff on matters of law referred me to Oak Property Co. Ltd. v. Chapman (1947) K.B. 886, and argued that 'A general oral consent alone is not any evidence of waiver of an accrued right of action'. This Mr. Hoosen used in argument in the event that I was against him on the facts. In the event, of course, as outlined above I have held against him on the facts in determing that the conversation took place as described by the 1st defendant and his witness. 17. On the other hand Mr. Sum for the 2nd defendant referred me to S.M. Churn v. Chey Tse Fun and another 1953/D.C.L.R. 21 also in a conjunction with this one must look at Banning v. Wright 1972 1 W.L.R. 972 H.L. It was held in the Hong Kong case that where the Landlord continues to collect rent after knowledge of subleting by a previous owner he was estopped from claiming the possession of the premises in respect of which rent had been so collected. He also referred to another case Wong Liu Oi-choh v. Yeung Chim (1959) D.C.L.R. 122. 18. Miss Woo on behalf of the 1st defendant based her submissions on two heads (a) estoppel and (b) waiver. She claimed that both those situations applied and referred me to the decision of the Court of Appeal Chuk Yau-cheong v. Li Miu Ying No 14 of 1979. The decision was delivered by the Chief Justice. It was those held that the defences of estoppel and waiver are available when the Landlord seeks possession of the premises under section 53 of Cap. 7. 19. From the foregoing it is clear that the essential facts found by me are:
20. The issue that arises is whether the plaintiff has waived the strict terms of paragraph (3) of the rent receipt. Of course consequent upon the decision of Chuk Ya-cheong v. Le Miu Ying Appeal Decision 1979/14, there can be no doubt that the plaintiff can not now rely on the provisions of section 53(2)(e) of the Landlord and Tenant (Consolidation) Ordinance if the right has been waived. This of course was followed and elaborated upon in Chan Nim, v. Poon Siu-ping (alias Ying Poon Yuen Wah) appeal decision No. 3 of 1980. Where the court of appeal held that:
21. For the purpose of this judgment I do not propose to deal with the question of estoppel as a separate issue from that of waiver. The position has been well put by DENNING L.J. (as he then was)
I propse to deal with the situation as a waiver. 22. There is no doubt in my mind that the plaintiff during the course of negotiation stated that subleting would be permitted. Although particular tenants were not specified and accordingly it is only a general oral consent, nevertheless in the circumstances the plaintiff's conduct amounts to a waiver. 23. Accordingly the claim is dismissed, costs to the defendants to be assessed on the lower seale.
Representation: IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION ACTION NO. 8780 OF 1979 -----------------
----------------- Coram: H.H. Judge Caird, D.J. Date of Judgment: 14th July, 1980. --------------------------------------------------- JUDGMENT AS TO MESNE PROFITS --------------------------------------------------- The Plaintiff has prayed for relief at the rate of "$800 per month from the 26th of August until delivery of vacant possession of the said premises to the plaintiff." I had dismissed the claim for possession and this leaves the second prayer to be disposed of. The plaintiff said in evidence that he refused the rent and later he returned rents which had been posted to him. This was not in dispute on that no cross examination was addressed to this issue. There is 12 months rent due as at 26th July 1980 with rent being paid monthly in advance. The plaintiff is entitled to judgment in the sum of $9600. No costs as that sum was not a substantial issue.
Representation: |