Lucky Hero Development Ltd. v. Wong Hoi Ming
Read the full judgment text of DCCJ 15792/2000 on BabelCite. This District Court judgment was delivered on 25 July 2001.
1. This is an action by a Landlord against its tenant for arrears of rent. The claim was for the period between 1st January 2000 and 30th November 2000 and for the sum of $54,219.00.
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DCCJ015792/2000 DCCJ 15792/2000 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO.15792 OF 2000 -----------------------------------------
-------------------------------------- Coram: Deputy District Judge Anthony Chow Date of Hearing: 13 July 2001 Date of Handing Down Judgment: 25 July 2001 --------------------------------------- JUDGMENT -------------------------------------- INTRODUCTION 1.This is an action by a Landlord against its tenant for arrears of rent. The claim was for the period between 1st January 2000 and 30th November 2000 and for the sum of $54,219.00. BACKGROUND 2.This case came to the District Court with a long and checkered pass. The agreed facts can be summarized as follows:
THE PLAINTIFF'S CASE 3.The Plaintiff alleged that the parties never reached an agreement for the Defendant to surrendered his tenancy. In the alternative, if there was such an agreement, it was subject to a condition that the Defendant could deliver vacant possession of the premises. THE DEFENDANT'S CASE 4.In a telephone conversation on or about October 1999, the Plaintiff's representative Mr. Cheung, agreed to accept the Defendant's surrender of his tenancy. Mr. Cheung then negotiated the terms of a new tenancy agreement directly with Mr. Chan. 5.Upon acceptance of the surrender, the Defendant had nothing further to do with the premises or the relationship between the Plaintiff and Mr. Chan. THE ISSUE 6.There was only one main issue in this matter: Whether the Plaintiff had accepted the Defendant's surrender of the premises on or about October 1999? THE LAW 7.There are two types of surrender: express surrender and surrender by operation of law. EXPRESS SURRENDER 8.The learned authors of Woodfall's Law of Landlord and Tenant (vol. 1) explained express surrender (in para. 17.017) as follows:
9.Whether there was an express surrender is a finding of fact based on evidence presented by the parties, the testimonies given by the Plaintiff's witness and the Defendant. In support of an express surrender, Defendant submitted two groups of evidence. First, the Defendant's testimony and second, the pleadings and other documents in the High Court action, the transcripts of the appeal hearing before Cheung J. and his Lordship's judgment (the "High Court Documents"). 10.Defence Counsel submitted that since solicitor for the Plaintiff had in the High Court appeal hearing had: applied to amend the Statement of Claim to include an alternative claim of surrender and admitted in front of Cheung J. that there was an effective surrender; proved that there was in fact an acceptance of the Defendant's surrender. 11.I cannot agree with that argument. After reviewing all transcripts of hearings before Cheung J., it was clear that the issue was brought up because in the original Statement of Claim, solicitors for the Plaintiff had only pleaded forfeiture as basis for possession of the premises. It was correctly pointed out by Cheung J., that there was no statutory forfeiture in Part IV tenancies and there could not be any forfeiture clause in the lease since there was no written lease, the Plaintiff could not rely on forfeiture and the judgment must be set aside. 12.In effect, Plaintiff's solicitor had to desperately come up with an alternative argument to preserve his client's judgment. He submitted surrender as an alternative ground for possession. 13.My analysis is supported by the following: First, the fact that the words "假設" and "如果" was peppered throughout the solicitor's submissions to Cheung J. Second, in the draft-amended statement of claim, surrender was stated specifically as an alternative basis for possession. Third, the amended statement of claim, with surrender as an alternative ground for possession, was never filed into court. Fourth, transcript of the hearing dated 30th June 2000 (between line Q and R of the first page) clearly showed the Plaintiff's solicitor retreating from the argument of surrender. 14.Accordingly, it is my finding that the High Court Documents were irrelevant to the issue of whether there was an acceptance of the Defendant's surrender in the October 1999 telephone conversation. 15.The Defendant alleged that in the telephone conversation with Mr. Cheung in October 1999, Mr. Cheung was for the first time informed of the subletting and then immediately agreed to accept the Defendant's surrender. 16.I found that most unbelievable. In the Defendant's own testimony, the telephone call was very brief, only a few words were spoken, he did not have enough time to tell Mr. Cheung any details on: When the sub-tenant will vacate the premise? How much the subtenant was paying in rent? and Whether the Defendant kept any rental deposit? All of these must have been in Mr. Cheung's mind, specifically when, according to the Defendant, rental deposit was a point of contention between the parties. 17.Given the fact that this was the first time Mr. Cheung learned of the sub-tenancy, it will not be reasonable for him to then immediately agree to a surrender without seeking more information from the Defendant and then get instruction or approval from his superiors. Mr. Cheung after all, was only a low level supervisor in the Plaintiff's company. In fact, that was what Mr. Cheung did, he asked the Defendant to put his request in writing. The Defendant 's written notice was just that, a notice of surrender and not proof of an acceptance of the surrender by the Plaintiff. 18.All of the above lead me to conclude that in the October 1999 telephone conversation, Mr. Cheung never agreed to the Defendant's surrender. All Mr. Cheung did was to request the surrender notice be put into writing, so that he could seek approval or instruction from his superiors. There was no immediate agreement to surrender and therefore no express surrender. SURRENDER BY OPERATION OF LAW 19.Woodfall's learned authors explained surrender by operation of law as follows:
20.In this case, the only action by the Plaintiff which may be considered as an unequivocal acceptance of termination of the Defendant' tenancy was Mr. Cheung's attempt to reach a new tenancy agreement with Mr. Chan. This effort was not successful. No agreement was ever reached. 21.One of the examples of acts considered not amounting to surrender by operation of law, given in Woodfall's (in para. 17.021), was:
22.I have also carefully considered the combined effects of all of the Plaintiff's actions in this matter, I did not find them amounted to an indication of cesser of the Defendant's tenancy. Accordingly, I found that there was no surrender by operation of law. JUDGMENT
Representation: Mr. Josiah H.K. Lee instructed by Messrs. Leung, Chan & Pang for the Plaintiff. Mr. Lam Siu-wah Joseph instructed by Messrs. Chan & Chuk for the Defendant. |