Tang Woon-kai v. Tang Ting-chun

HCA000619/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 619 OF 1973

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Coram: Leonard J. in Court.

Date of Judgment: 10th December, 1974.

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JUDGMENT

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The background

1. On the 25th August 1948 the defendant in this action (to whom I will hereinafter refer as "the lessor") and the plaintiff(whom I will call "the lessee") entered into a Chinese "agreement for the lease of an orchard". By this agreement the lessor agreed to let to the lessee "the orchard under (the lessor's) name situate at Lots 169, 183, 651, 655, 656, 681 and 831 in demarcation district No. 5, orchard lot bounded by the garden boundary planted with bamboo trees near the side of the railway at Tai Po Tau Village" and the lessee expressed his willingness to accept a letting of "the above-mentioned orchard". The premises were "let for commercial businesses of agricultural and animal farming, amusement park, food catering etc.". The term of the lease was to be twenty years from the 1st November 1948 until the 30th of October 1968 and the agreement provided that at the expiration of the term the lessee should return "the original building and fruit trees to the lessor". The agreement further provided that the existing building "with motor pipes and iron gates" should be "freely used" by the lessee. The fruits produced by the orchard were reserved to the lessor. New building erected by the lessee and additional fruit trees planted by him became the property of the lessor and there was an express proviso that "within the orchard if (the lessee) wishes to erect any building he must obtain the written consent of (the lessor) as to their height and location before he erects the building. (Because of Fung Shui, provision applies only to the areas immediately in front of and to the left and right of the ancestral tomb. The height of the erection shall not exceed the said tomb. For the rest of the area (the lessee) is free to erect. This is particularly noted)".

2. On the 16th of January 1970 the lessor commenced proceedings in Victoria District Court Civil Action No. 618 of 1970 for recovery of possession of the premises let. As appears from the record of proceedings in that case paragraph 1 of the lessor's particulars of claim alleged that the plaintiff had at all material times been and still was the registered manager and as such had the full powers of an owner in respect of "an orchard now known as 'Greenville Park'". (There follow some Chinese characters in brackets) "situate near the Tai Po Railway Station and at Lots No. 169, 183, 651, 655, 656, 681 and 831 in Survey District No. 5 in Tai Po, New Territories in the Colony of Hong Kong." The particulars of claim then indicate that throughout the particulars the premises so described shall be called "the Greenville Park", recite the Chinese agreement which I have already mentioned and state that "the Greenville Park" was "thus let" and had thereafter been and was still being used by the lessee as an amusement park for business purposes and that it was excluded from the provisions of the Landlord and Tenant Ordinance by Section 3(1)(b) of the Landlord and Tenant Ordinance. The particulars then claim that the agreement expired by effluxion of time on the 31st October 1968 and claims ejectment of the defendant from and possession of the Greenville Park.

3. All the facts mentioned in the particulars of claim other than that the term had expired by effluxion of time were admitted by the lessee in his defence in that action. As to the claim of expiry by effluxion of time the lessee put forward the case that "the said land" had been requisitioned by the Army from July 1949 until June 1958 and that as a consequence in March or April 1950 the plaintiff agreed to extend the period of the lease for an additional period equivalent in length to the period in which the Army had occupied "the said land". The lease - the lessee therefore claimed - would not expire until October 1977. The lessee counterclaimed for a declaration that the oral agreement extending the lease was binding on the plaintiff and ought to be specifically performed. By his reply and defence to the counterclaim the lessor contended that "the Greenville Park, the premises in suit" were requisitioned by the Hong Kong Government for the use of Her Majesty's Armed Forces but he denied the alleged agreement to extend the term and urged that the agreement could not "be varied or otherwise modified by any extrinsic evidence including the alleged 1950 agreement to extend the twenty years' term" and in the alternative denied that the alleged 1950 agreement was evidenced by any memorandum or other sufficient memorandum in writing as required by the Statute of Frauds 1677 and claimed that, if it existed, it was unenforceable.

4. In the course of his evidence the lessee stated that he had moved into "the land" in November 1948 and that in the month of July 1949 the Hong Kong Government requisitioned "the land for the use of the Army". He then attempted to set up the alleged oral agreement of extension. He did not dispute that the Government had requisitioned "the property" nor did he dispute that the lessor had collected payments from Government for the land requisitioned (during a period when the lessee was detained) and paid them over to him (less the rent which had accrued due) on his release from detention. He also admitted that after his release the Government had paid to him all sums payable by Government as a result of the requisition. His evidence indicated clearly that what was requisitioned was what was let under the Chinese agreement.

The judgment in the District Court

5. The first paragraph of the notes of judgment of District Judge D. Cons (as he then was) reads as follows :

"The plaintiff in this action is the effective owner of an orchard in the New Territories known as 'Greenville Park'. In 1948 he entered into an agreement with the defendant (exhibit 1) to lease the same to the defendant to carry on there the business of a firm cum amusement park with catering facilities. The term of the lease was agreed to be twenty years, commencing from the 1st November of that year at a rent of $300 per month."

The notes of a judgment go on to refer to the alleged oral agreement made in 1950 and indicate that the trial judge was disposed to accept that there had been such an oral agreement. He held that such an oral agreement was required by Section 4 of the Statute of Frauds to be either in writing or evidenced by a signed memorandum. The notes go on to say :

"The possibility of part performance was briefly mooted in argument by the plaintiff, the defendant did not seek to rely thereon. That was understandable. Retention of possession alone would not support the plea."

The appeal to the Full Court.

The lessee appealed to the Full Court in Appeal No. 25 of 1970.

The grounds of the appeal were as follows :

The facts of the matter were very fully dealt with by Mr. Justice Blair-Kerr in the course of his judgment in the Full Court in which he described the lessor as "the registered manager of an orchard situated near Tai Po Railway Station and as such as the effective owner". He stated that the lessor had entered into an agreement with the lessee to lease "this orchard" (i.e. that of which the lessor was the effective owner) to the lessee for a period of twenty years from the 1st November 1948 and refers to Government as having "requisitioned the land". His judgment went on to discuss the failure of the lessee to plead part performance and he observed that if the counsel for the lessee had understood that part performance was being pleaded he should "surely have stood up and made his position clear". Mr. Justice Mills-Owens observed that the Full Court would have in effect been retrying the case if it were to have acceeded to the arguments of counsel for the lessee and have been retrying it on a basis which did not exist namely a plea of part performance.

The appeal to the Privy Council and application for a stay of execution.

6. The lessee thereupon obtained leave to appeal to the Privy Council. This appeal was never heard and was dismissed for want of prosecution. The lessee sought to have it restored and his petition for this purpose was dismissed on the 29th of June 1972 whereupon in August 1972 the lessor sought to issue execution and the lessee a stay on execution. In support of his application the lessee filed an affirmation made on the 11th of August 1972 in the course of which he said :

On the 21st September 1972 it was ordered by consent that execution be stayed until 6th December 1972. Five days before the lessor might have issued execution that is to say on the 1st December 1972 the solicitors for the lessee wrote to the (then solicitors for the lesson) in the following terms :

"Dear Sirs,

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This letter was apparently ignored by the then solicitors for the lessor who, had they been wise, should have immediately pointed out that the plaintiff had obtained an order for recovery of possession of "the Greenville Park" and not just the lots which were mentioned by number in the judgment.

The writ in the present action.

7. The present action commenced on the 9th of March 1973, the lessee being the plaintiff and the lessor the defendant and by his endorsement of claim on his generally endorsed writ the lessee claimed an injunction to restrain the lessor from "entering under the plaintiff's land known as Lots Nos. 169C, 170B, 183C, 816, 206, 205, 191, 200, 207, 209, 210, 208, 198, 220, 199, 213, 214, 222, 211, 223, 224, 225, 227B, 226, 232, 203, 204, 201 and 202 situate near the Tai Po Railway Station in Survey District No. 5 in Tai Po, New Territories and/or to restrain the defendant as aforesaid from continuing to erect any fences or obstructions on or along the boundaries of the plaintiff's said land".

Affidavit in support of application for interlocutory injunctions.

8. The solicitors for the lessee sought and obtained ex parte and injunction against the lessee. They did so on the affidavit of the lessee sworn on the 9th of March 1973. In this affidavit the lessee swore that he had been "in continuous and uninterrupted possession of the following lots near the Tai Po Railway Station in Survey District No. 5 in Tai Po, New Territories", since the year 1948. He then sets out the 29 lots mentioned in his statement of claim and exhibits a plan showing their location. It is noteworthy that this paragraph refers to these 29 lots as being near the Tai Po Railway Station. In fact they are not. Greenville Park is not near the railway station either. What is interesting is that the mistake must owe its origin to the particulars of claim in the District Court action. It is a mistake also repeated by Blair-Kerr J. in his judgment. When describing the 29 lots which are listed as not forming the subject matter of the judgment therefore, the draftsman may well have had in mind the particulars of claim on which the District Judge gave "judgment as claimed"! This affidavit goes on to claim that from the year 1948 until the 6th December 1972 he was in continuous and uninterrupted possession of Lot Nos. 651, 655, 656, 681 and 831 and that he delivered up possession of these lots to the defendant on the 6th December 1972 pursuant to an order made in V.C.J. Action No. 618 of 1970. It was the plaintiff's case as set out in this affidavit that he had obtained possession of the two series of lots in 1948 and had started to use the area as a whole as a restaurant with surrounding gardens and children playgrounds. The whole was requisitioned in 1949 and handed back in 1958 when the lessee converted it into an amusement park with restaurant, gardens and the zoo. The whole area was, he says, known as "the Greenville Park" (not as "Greenville Park") and many of the important buildings and amenities of it were situated on the lots which he re-delivered to the lessor in December 1972; that when he returned the lots to the lessor he discontinued operating the amusement park and established a riding school and that his enjoyment of the land which he retained was interfered with by the lessor authorising the erection of the fences. The lessee in due course took out a sum ons inter partes to have the injunctions continued until the trial of the action. In this he was unsuccessful.

9. On the 22nd of March 1973 there was filed on behalf of the lessor an affidavit in which it was alleged that the lessee had "mysteriously withheld all information as to how he is entitled to be and remain in possession of the parcels enumerated by him" and refers to Victoria District Court No. 618 of 1970 the history of which I have already set out. In this affidavit the lessor assumes that the Chinese agreement contains an erroneous description of the lots occupied by Greenville Park. To my mind this assumption is incorrect. The Chinese agreement describes the boundaries of Greenville Park. It also describes the park as being "at" the seven lots listed. It is common ground that at least six of these seven lots form part of the park. I am not satisfied that it is erroneous to describe property as being "at" lots which are part of it although it can be very misleading to do so. On the 31st March 1973 in support of his application to have the injunction continued the lessee filed a further affidavit. This affidavit alleged that there had been an agreement between the lessor's father and the lessee in August 1948 pursuant to which the "Chinese agreement" was entered into between the lessor and the lessee. It went on to allege for the very first time so far as I am aware that some 10 days later the lessee was considering the Chinese agreement with a friend and "discovered" that the Chinese agreement did not refer to the whole of Greenville Park but only to the seven lots specifically mentioned in it. [This, I would pause to remark, must have seemed to him at that time a discovery of major importance. He had wanted a lease of Greenville Park, he had thought the Chinese agreement would give Greenville Park to him and he "discovered" it did not (notwithstanding as we shall see, a very real argument that it did) so he entered into an oral agreement that he should get the entirety. Yet the first time we find it suggested in writing even impliedly, that the Chinese agreement did not give him the entirety of Greenville Park is the letter of 1st December 1972 to which the lessor's then solicitors failed to reply.] This affidavit goes on to state that when he made this discovery he went to see the lessor's father and expressed annoyance and that later the lessor's father put forward the proposal that upon payment of $8,000 to the lessor's father (the receipt for which is unfortunately not now available) it was agreed that he could use the lots to which he now claims to be entitled without time limit and that he thereupon took possession of those further lots. The tenor of the argument advanced in this affidavit was then that the further lots were not the subject of the Chinese agreement and were not adjudicated upon in the District Court action because - it was assumed - they were not covered by the Chinese agreement. The amended statement of claim in this action follows this argument. It alleges that by the Chinese agreement the plaintiff agreed to take and the defendant as manager of the Tai Po Tau Tang Yu Yuen, otherwise known as the Wah Lok Yuen, agreed to let the land known as Lots Nos. 169, 183, 651, 655, 656, 681 and 831 in Survey District No. 5, Tai Po, New Territories, for twenty years from the 1st November 1948 (I should note in passing that Lot Nos. 169 and 183 do not appear on any of several plans placed before me. Lots 169C and 183C do so appear and it is clear that the references to Lots 169 and 183 are intended, wherever they appear, as references to Lots 169C and 183C. I will refer to Lots 169C, 183C, 651, 655, 656, 681 and 831 henceforth as "the seven lots".) The amended statement of claim goes on to allege that at or about the time of the signing of the Chinese agreement the lessee lent the sum of $4,000 to the defendant's father and about 10 days later a subsequent agreement was entered into orally whereby Lots 170B, 816, 206, 205, 191, 200, 207, 209, 210, 208, 198, 220, 199, 213, 214, 222, 211, 223, 224, 225, 227B, 226, 232, 203, 204, 201, 202, 187, 621B, 189, 186, 188, 190, 185, 212 and 196 (which I will refer to as "the other lots") were let to the lessee in consideration of the sum of $8,000 of which $4,000 was to be set off against an earlier loan and the balance of $4,000 was paid by the lessee to the lessor whereupon the lessor entered into all the premises covered by the seven lots and the other lots; that the Army requisitioned the entire area consisting of the seven lots and the other lots from July 1949 until June 1958; that the lessor collected on behalf of the lessee the monthly rental from the Army and paid it over to the lessee after deducting $300 per month being the rental due under the Chinese agreement. It will be noted that no monthly sums were payable, according to the lessee, for the other lots. The statement of claim goes on to allege that in or about March or April 1950 the defendant agreed with the plaintiff that the lease in respect of the seven lots should be extended for a period equivalent in length to the period of time in which the Army occupied the park; that the defendant commenced action in 1970 being Action No. 618 of 1970 in Victoria District Court for recovery of possession of the seven lots and that judgment was entered in favour of the defendant and the appeal dismissed. The statement of claim goes on to allege that the erection of fences on the other lots was in breach of the oral agreement relating to the other lots. It claims in the alternative that the lessee is entitled to rely on the oral agreement to extend the Chinese agreement by the period of requisition (despite the fact that the lessee had been prevented from doing so in the District Court action) or to rely on it as embracing the other lots "despite the judgment in respect of" the Chinese agreement. It will be noted that the endorsement on the writ claimed only injunctions and damages for trespass. No application has ever been made to amend this general endorsement but in the amended statement of claim the plaintiff purports to claim firstly a declaration that he be entitled to be registered as the owner of the other lots and for rectification of the Land Office Register and all documents relating to the same; alternatively a declaration that he is entitled to remain in possession of the other lots as lessee or licencee for the remaining term of the Block Crown Lease or for such length of time as this Court in its equitable jurisdiction should think just or until October 1977; injunctions to restrain the defendant from trespassing and to compell him to remove his property or other belongings. This amended statement of claim is, then, quite a remarkable pleading.

Defence and counterclaim

10. By his re-amended defence and counterclaim the lessor admits the Chinese agreement. He claims however that what was let by it was an orchard otherwise known as Greenville Park or Chung Yuen Sin Koon situate (inter alia) at, near, or in the vicinity of, the seven lots. He contends that the Chinese agreement included not only the seven lots but also the other lots. The alleged oral agreement is denied (in the alternative it is pleaded that it was not evidenced by any or any sufficient memorandum in writing) and it is claimed that the lessee had entered into possession of the area known as Greenville Park under the terms of the Chinese agreement and no other and that by mistake the Chinese agreement did not specifically refer to the other lots. The collection of a monthly rental of $1,050 from the Army and the accounting therefor to the lessee less $300 per month is admitted. It is further contended that by the judgment in Action No. 618 of 1970 the lessor became entitled to recover possession of the entirety of Greenville Park that the plaintiff's appeal against the order was dismissed by the Full Court in Civil Appeal No. 25 of 1970, and generally in answer to the plaintiff's claim that the lessee was estopped per rem judicatem from claiming any right title or interest of in or to Greenville Park or any part thereof by virtue of the judgment in V.C.J. Action No. 618 of 1970 and Civil Appeal No. 25 of 1970; that the proceedings were frivolous and vexatious and an abuse of process of this Honourable Court in that the lessee was seeking to relitigate the matters adjudicated upon in the said V.C.J. Action No. 618 of 1970 and Civil Appeal No. 25 of 1970. There is a counterclaim for a declaration that the Chinese agreement included the other lots and alternatively an order for rectification of it. The lessee in due course filed a reply and defence to the counterclaim on which it is unnecessary for me to dilate.

The hearing

11. The action was set down for hearing on the 3rd June 1974 and at the request of the then wildly optimistic litigants only five days were reserved for the substantive trial.

12. It became clear to me from what was said by counsel on the opening day that the matter was in no way ready for trial notwithstanding the fact that on the 18th of March 1974 it had been ordered by Mr. Justice Cons in Chambers that the action be removed from the pending list and a hearing date be fixed in consultation with counsel for both parties. On the 29th of May 1974 (that is to say on a Saturday five days before the date fixed for hearing) the solicitors for the lessor had thought fit to apply to the Registrar for an order that "the questions or issues raised by paragraph 16 of the Amended Defence and Counterclaim herein and paragraph 3 of the Reply and Defence to Counterclaim be tried as preliminary questions or issues before all the other questions or issues in the action." This application was dismissed by the learned Registrar and by notice dated the 1st June 1974 the lessor's solicitors gave notice of intention to appeal against this decision. I ordered initially that the appeal be stood over for a date to be fixed as the lessee's solicitors had inadequate notice of it and I commenced the hearing of the case itself. Thereupon I was met by a number of requests for leave to amend pleadings. I made orders as to these and at the request of the parties went to view the locus.

My view of Greenville Park

13. I found that at the entrance to the park was an imposing Chinese gate which leads on to Lot 651 (one of the seven lots); going north from this lot one entered lot 232 (one of the other lots) and passed along clearly marked paths past various of the other lots to the northern boundary. As one goes north there is a bamboo boundary broken at times to one's right or east. Outside the northern boundary was the ancestral tomb and further north of it was another smaller tomb. Both looked south. The bamboo fence at this part and slightly to the west of the ancestral tomb was very thick and following it on the outside I found myself led around a large area of Crown land enclosed within the fence. Substantial parts of the bamboo fence were undoubtedly very old and it extended along almost the entirety of the northern and the western borders and until one came to the south western border which is parallel with the Kowloon Canton Railway Line. This border also contained a large quantity of bamboo of considerable age. There were old and presently disused buildings scattered throughout the entire area more particularly on the south western part of it. Several of these buildings were on the seven lots and almost an equal number on the other lots. The trees and shrubs were ill-tended and overgrown but undoubtedly the park had once been a very pleasant resort. The seven lots and the other lots had clearly been used as one unit, the main if not the only entrance to which was by the large Chinese gate on Lot 651. Furthermore it was clear that Lot 831 (one of the seven lots) did not form part of the unit. It lay outside the natural boundaries of the park. Although the park was close, on its south western boundary, to the Kowloon Canton Railway and to Tai Po Road it was a considerable distance from Tai Po Market Railway Station. I would estimate the distance to be a mile at least.

Evidence of Mr. Gray

14. On the 5th of June 1974 I resumed the hearing of the appeal from the refusal of the Registrar to have decided as a preliminary issue the questions raised by paragraph 16 of the defence as it then stood. In the course of this hearing at the request of the parties I heard evidence from the official translator Mr. Gray as to the meaning of the four characters, of which may be romanized as Chung Yuen Sin Koon, used in the particulars of claim in the District Court action as an equivalent of "Greenville Park". Used together these four characters are a romantically exaggerated description and translated as a phrase I considered they may be best interpreted as "Pine Garden Celestial Meeting Place" or "Pine Garden Fairy Land". The words used in a Chinese receipt may be romanized as "Luk Yieh Sin Koon" which according to Mr. Gray may best be translated as "Green Wilderness Fairy Land" or "Green Meadows Wonderland". According to Mr. Gray, the description of the premises in the Chinese agreement could best be translated as "an orchard under his name and situated in the vicinity of Lot Nos. 169, 183, 651, 655, 656, 681, 683, in D.D. 5 New Territories alongside the railway in Tai Po Tau Village and the lot in which the orchard is situated has a bamboo garden as its boundary". Mr. Gray was quite clear and I accepted that two characters which may be romanized as "Foo Kan" governed the lot numbers which preceded them would more properly be translated as meaning "in the vicinity of" rather than as "at". It was pointed out to Mr. Gray that it was common ground between the parties that six of the seven lots formed part of the ground let - in other words the ground let was not only near these lots but included them or some of them - and while pointing out that the writing was not that of a highly educated man he found it impossible to give an adequate translation of the words bearing this in mind. On the face of the document he said that it was apparent to him that the lots were not intended to be included but there was no grammar in the sentence and it is very difficult to analyse it.

The Consent Order

15. After considerable argument which took up the entirety of the 6th of June the parties requested me to make a consent order in the following terms :

"It is ordered that :

3. The cost of this Appeal referable to the 5th, 6th and 7th days of June 1974 and including the costs of the hearing before Mr. Registrar Silke on the 1st day of June 1974 be :

The issues

The matter was thereupon adjourned for dates to be fixed. Accordingly the issues before me were those raised by paragraph 16 of the amended defence and counterclaim (paragraph 18 of the re-amended defence and counterclaim). This paragraph I have already referred to but for ease of reference I quote it in full. It reads as follows :

"16. Generally in answer to the Plaintiff's claim herein the Defendant contends that the Plaintiff is estopped per rem judicatem from claiming any right title or interest of in or to Greenville Park or any part thereof by virtue of the judgment in V.C.J. Action number 618 of 1970 and Civil Appeal number 25 of 1970. The Defendant contends that these proceedings are frivolous and vexatious and an abuse of process of this Honourable Court in that the Plaintiff is seeking to relitigate matters adjudicated upon in the said V.C.J. Action number 618 of 1970 and Civil Appeal number 25 of 1970."

An analysis of this paragraph in the re-amended statement of defence and a consideration of the arguments addressed to me persuade me that three questions must be answered. Firstly, was the judgment of the learned District Judge as affirmed by the Full Court and in the Privy Council proceedings a judgment in relation to the seven lots only or a judgment affecting six of the seven lots and the other lots; secondly, is the plaintiff now trying to raise matters which, if true ought to have been raised by him in the District Court and which he failed to raise; and thirdly, having regard to the manner in which the lessee acted in relation to the proceedings in the District Court, the Full Court and before the Privy Council and when seeking the stay of execution after his petition to the Privy Council had been rejected was he acting in a manner which should properly be regarded as an abuse of the process of the court in that he sought to relitigate matters adjudicated on in the earlier litigation.

16. The following factors persuade me that the judgment of the learned District Judge was a judgment affecting six of the seven lots and the other lots and not the seven lots alone :

"The plaintiff says that the Greenville Park the premises in suit was requisitioned by the Hong Kong Government for the use of Her Majesty's Armed Forces." (My emphasis)

"In August 1948 I entered into a tenancy agreement with the plaintiff. I produce that agreement and the translation. I moved into the land in November 1948. In the month of July of 1949 the Hong Kong Government requisitioned the land for the use of the Army." (My emphasis)

"He (the lessor) said 'In future you will be compensated according to the number of years that your land has been used by the Army', I asked him (how about the rent'. He said 'The same as before' that is the same as the original rent i.e. $300 per month."

"The plaintiff in this action is the effective owner of an orchard in the New Territories known as Greenville Park. In 1948 he entered into an agreement with the defendant to lease the same to the defendant to carry on there the business of a firm cum amusement park with catering facilities."

Construction of the Chinese agreement

17. In the course of argument Mr. Bernacchi for the lessee conceded that if on a true construction of the Chinese agreement what was let was six of the seven lots plus the other lots, he was estopped in these proceedings by the doctrine res judicata. I have no doubt that this was a proper concession. An examination of the Chinese agreement in the light of the various plans befoee me and of my visit to the property persuades me beyond doubt that the Chinese agreement is not an agreement to let the seven lots but one to let the orchard consisting of six of the seven lots, the other lots and two lots of Crown land. It is these lots that comprised "the orchard". This orchard consists in part of six of the seven lots. It is situate near or at the seventh of the seven lots. I have no doubt that the orchard was in 1949 bounded by a garden boundary planted with bamboo trees. The south western boundary of it was and is "near the side of the railway at Tai Po Tau Village". The Chinese agreement certainly did not refer to these seven lots alone for by no stretch of the imagination could they be said to be "an orchard", or to form an unified entity. Lot 831 is clearly outside the orchard. Again in considering what was let by the Chinese agreement I get considerable assistance from Clause 7 of it which reads as follows :

"Within the orchard, if party B (the lessee) wishes to erect any building, he must obtain the written consent of party A (the lessor) as to their height and location before he erects the building (because of Fung Shui the provision applies only to the areas immediately in front of and to the left and right of the ancestral tomb. The height of the erection shall not exceed the said tomb. For the rest of the area party B is free to erect. This is particularly noted)."

The ancestral tomb lies to the east of the large piece of Crown land which is within the boundaries of the orchard, and immediately to the north of the orchard. It is built on a rising ground looking south. Immediately to the south and to the south east and south west of it there are a mass of lots none of which is listed in the seven lots except Lot 651 which is that part of the orchard that is most distant from the ancestral tomb. Before any building erected on Lot 651 could interfere with the Fung Shui of the ancestral tomb it would need to be many storeys high since Lot 651 is very much below the ancestral tomb. Obviously what the lessor feared when inserting Clause 7 in the Chinese agreement and what he wished to prevent was not the erection of buildings on Lot 651 but the erection of buildings on plots closer to the tomb that would destroy the Fung Shui. Normally one would not expect such buildings to be erected on any lots except on Lot 191, 200, 207, 209, 208 or 210 since below 209 the land falls away right down to Lot 651. Again if the lessor had wished to let the seven lots (a) only he would not use the word "orchard" to describe them (b) there would have been no necessity to insert information as to their boundaries nor (c) would it have been necessary to indicate that they were at the side of the railway. All these considerations appear to me to indicate clearly that on the true interpretation of the Chinese agreement what was let was something more than the seven lots. The seven lots could not form a unified entity. Accordingly I have no doubt but that the Chinese agreement must be interpreted as including the other lots. Once that be accepted ex concessio the lessee is estopped per rem judicatem from setting up the case which he seeks by his statement of claim in this action to set up.

The "second oral agreement"

18. If this be wrong the matter does not however end there. In the Victoria District Court Action No. 618 of 1970 it was "an orchard now known as 'the Greenville Park'" that formed the subject matter of the proceedings. That subject matter was stated to have been let to the lessee by the Chinese agreement. The lessee now seeks to make the case that what the Chinese agreement let to him was not an orchard now known as Greenville Park but only the seven lots six of which formed part of Greenville Park. He claims to be entitled to the rest of Greenville Park under the oral agreement allegedly entered into in consideration of the payment by him to the lessor's father of $8,000. According to his pleading this oral agreement entitled him to possession for as long as he wished. I have not heard any evidence as to this alleged oral agreement and although its inherent improbability is obvious I cannot dismiss its existence out of hand. What is of importance to note concerning this oral agreement is that in his statement of defence in the District Court action the lessee sought to set up another oral agreement i.e. that to extend the period of the Chinese agreement for an additional period equivalent in length to the period in which the Army would occupy the said land. This oral agreement the learned District Judge most generously found to have existed. Oral agreements then were very much in the minds of the parties. The period of the lease was very much in the mind of the lessee. If the oral agreement which he now alleges had been entered into it would have been of fundamental importance to him in the presentation of his case in the District Court to have pleaded and proved it. Whether or not it had been entered into was an issue which in the words of Somervell L.J. in Greenhalgh v. Mallard⁽¹⁾ at page 257 was :

"So clearly part of the subject matter of the litigation and so clearly could have been raised that is it would be an abuse of the process of the court to allow a new proceeding to be started in respect of it."

Such an abuse does not appear to daunt the lessee or his legal advisers for by paragraph 10 of the amended statement of claim it is contended that the lease (postulated admittedly to be of the seven lots but none the less to be granted in accordance with the terms of the Chinese agreement) should not have expired until October 1977. By this paragraph then the lessee seeks to say that the lease in respect of the original seven lots which he agrees formed the subject matter of the District Court case should not have expired until October 1977. Even if the District Court case decided (as he contended) only the question of the right to possession of the seven lots he could not be heard to make this allegation.

19. That however is by the way, what is important to note is that the question of an oral agreement was very much alive in the District Court case. The oral agreement he now seeks to assert inconsistent as it may be with the oral agreement asserted in the District Court would have been germane to that case. He cannot be heard to assert it for the first time now. It is abundantly clear to me from the documents before me that not only did the District Court proceedings concern the entirety of the entity composed of six of the seven lots and the other lots but also that any reasonable lessee would have known full well that it did. The first sentence of the lessee's petition to the Privy Council reads as follows :

"That this appeal concerns an orchard known as 'Greenville Park' which was let by the respondent to the appellant for 20 years as from the 25th August 1948 at a rental of $300 per month to be used as an amusement park."

The second sentence reads :

"In July 1949 however the land was requisitioned by the Government for the use of the Army."

The draftsman of this petition clearly understood that the proposed appeal concerned not the seven lots but the entirety. It was the entirety which had been used as an amusement park. It was the entirety that had been requisitioned by the Government for the use of the Army. The third sentence reads :

"The Army remained in occupation until June 1958 when the appellant resumed possession."

It is clear that that of which the appellant resumed possession was the entirety and not just the seven lots. When the lessee's application to the Privy Council was finally dismissed he sought a stay of execution of the order of the District Court and filed an affidavit in support of his application for a stay. I have already set out the relevant portions of this affidavit and need only refer at this stage to the lessee's professed inability to find storage space. It was agreed between the parties that I should be supplied with lists showing the buildings on six of the seven lots and the buildings on the other lots. From these lists and from my inspection of land I had no doubt that any reasonable man, thinking (as the lessee now seeks to say he thought) that his occupation of the other lots was unaffected by the Order of the District Court, would have realised that he had ample room to store, in the buildings on the other lots, any goods which he had on the seven lots. I am told by Mr. Bernacchi that I should not have regard to this affidavit because I have not heard the lessee's evidence and if given an opportunity the lessee could explain his statements in this affidavit. I am prepared to accept that he could and that a trial judge might even believe him but to my mind no reasonable man could have sworn that affidavit in the terms in which it is couched while believing that the other lots were his to use as he liked for as long as he liked. It would be an abuse of the process of the court to allow the lessee to give evidence purporting to explain away that affidavit although it might well be that the lessee would be believed if he said that he personally did not know that the District Court case, the appeal to the Full Court and the petition to the Privy Council referred to the entirety of the "Greenville Park" but to allow him to give such evidence would be to permit him to repudiate documents he has himself put before the court in the earlier proceedings. For these reasons I am satisfied that the answers the three questions I postulated are as follows: (a) The judgment of the District Judge affected not only the seven lots but six of the seven lots and the other lots; (b) The lessee is bow seeking to raise a matter namely an oral agreement which ought to have been raised by him in the District Court; and (c) That it would be an abuse of the process of the court to allow him to relitigate these matters. All the issues raised by paragraph 18 of the re-amended defence must therefore be decided in favour of the lessor with costs and with the consequences as to costs provided for in the Consent Order of the 7th June 1974. Judgment for Defendant in action with costs. Counterclaim be stayed and not to be proceeded with without leave of the Court.

Representation:

Mr. Bernacchi, Q.C. and Mr. Asome (J.S. & M.) for plaintiff.

Mr. Jackson-Lipkin and Mr. Mills-Owens (W.K. Poon & CO.) for defendant.

(1) (1947) 2 All E.R. 255.