Ng Heung Chiu v. Chan Hon Kau t/a Chan Hon Kau Osteologist and Another
Read the full judgment text of DCCJ 1597/1977 on BabelCite. This District Court judgment.
1. The Plaintiff's claim against both Defendants is for possession of premises known as the Mezzanine Floor of No. 123 Queen's Road West and mesne profits commencing from the 1st of February, 1977 at the rate of $500 per month.
|
DCCJ001597/1977 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1597 OF 1977 -----------------
----------------- Coram: H.H. Judge Liu, Q.C. in Chambers. Date of Judgment: 13th December, 1977. ----------------- DECISION ----------------- 1. The Plaintiff's claim against both Defendants is for possession of premises known as the Mezzanine Floor of No. 123 Queen's Road West and mesne profits commencing from the 1st of February, 1977 at the rate of $500 per month. 2. The Plaintiff's causes of action in ejectment are founded on an alleged expiration by effluxion of time of a term created by a Chinese Tenancy Agreement dated 30th September 1972 at the monthly rental of $270.00 or in the alternative an alleged wrongful subletting. 3. On the 27th of July 1977, on the application of the Plaintiff the 1st Defendant was ordered to pay into Court within 14 days $1,620.00, being part of the mesne profits at the rate of the contractual rental of $270.00 per month for a period from 1st of February, 1977 to 31st July, 1977 and thereafter on the 1st day of each month the same sum of $270.00. The 1st Defendant has made default, and by the present summons the Plaintiff seeks a variety of relief. 4. The Court is invited to strike out the Defence of the 1st Defendant on the grounds that it discloses no reasonable defence, it is frivolous and vexatious and it is an abuse of process of Court. 5. At the very inception, my attention was diverted from the home-made Defence by the imperfections in the Particulars of Claim. There are sufficient defects in the Particulars of Claim to shutter all hope of success of the Plaintiff's summons. It is acknowledged that nothing short of a fixed term of no less than three years or an equal security of tenure without any provision for an earlier determination could suppress the sprouting of a statutory tenancy interest, and the effect of "a fixed term", even if substantiated by the Tenancy Agreement, has yet to be pleaded. Unless Part II and Part V of the Landlord and Tenant Ordinance are excluded, the primary user would dictate the extent of the 1st Defendant's entitlement. Generally, a six months Notice of Termination would be required to expunge his statutory protection. In paragraph 6 of the Particulars of Claim, a letter dated 1st of August, 1976 is alleged to have been sent to the 1st Defendant for the purpose of terminating his tenancy on the 31st January 1977. The date of dispatch has been omitted. As long ago as 1962, in CHONG Dim-ming v. HUI Di-king(1) Huggins J.A., as he then was a Judge of the District Court, laid stress on the necessity of pleading the date of service of a notice to quit:
The date of service of a notice to quit or a Notice of Termination is an essential ingredient for constituting a cause of action. It is regrettable that the guidance offered has been more honoured in the breach than in observance. If it is to be assumed that the letter was sent by post on the 1st of August, 1976, delivery in due course of post, even if established, was probably effected only on the 2nd August, 1976. On the pleading, there is no averment of a valid Notice of Termination. 6. The Defence is home-made, and the 1st Defendant has sufficiently raised the issue of primary user. From the tenor of his Defence, it would appear that the 1st Defendant claims to have occupied the entire premises for his own business and his family. Given a benevolent interpretation, it is not difficult to detect a denial of the alleged subletting. It cannot be said that the Defence, in all its naivety, truly discloses no possible reasonable defence. There is much to be said for the undesirability of and criticisms levelled at the laxity with which the home-made Defence was drafted, but in my view, the Defence should not be vitiated at this stage by the drastic measure which the Court is urged to take. In view of the defects in the Particulars of Claim, indulgence should not be withheld from the 1st Defendant, a party unrepresented. 7. I turn next to the Plaintiff's prayer for judgment on part of the mesne profits. This prayer cannot be entertained in view of a recent decision of the English Court of Appeal in Moore v. Assignment Courier Ltd. (2) where "the issue raised was a short and interesting one, namely: where a landlord purports to forfeit a lease and the tenant remains in occupation, is the landlord entitled to be paid, pending a determination of the landlord's forfeiture action, a periodic interim sum representing compensation, under one head or another, for the use by the tenant of the land during the period between the purported forfeiture and the determination of the action?" In Moore's case, the Plaintiff applied by Summons for judgment in the sum of part of the mesne profits as claimed, and the application was rejected. Sir John Pennycuick at p.642 C and G said as follows:
8. Obviously, the prayer for judgment on mesne profits cannot be acceded to. Solicitor for the Plaintiff withdrew the prayer in paragraph 4(b) of the Summons, and no more need be said. 9. In conclusion, it is plain to me that the Plaintiff cannot succeed on his Particulars of Claim as it now stands. The applications to strike out the Defence and to sign judgment on part of the mesne profits are denied. The Plaintiff be given leave to further amend the Particulars of Claim in terms of paragraph 1 of the Summons and generally within 14 days. I do not feel inclined to dispense with re-service of the further amended Particulars of Claim. There shall be no order as to costs.
Representation: Mr. Woo of Messrs. Walter Woo for Plaintiff/Applicant. Defendants absent. (1) 1962 D.C.L.R. 92 at p.93 (2) [1977] 1 W.L.R. 638 |