Por Mee Invesment Co Ltd v. Ilse Hedwig Pordes

HCA001631/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1631 OF 1971

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Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 16th day of November, 1971.

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DECISION

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1. This is an application by the plaintiff for judgment for possession of No. 11 Broadwood Road, Hong Kong together with mesne profits at the rate of $2,000 per month from the 1st March, 1971 until possession.

2. A written Tenancy Agreement dated the 19th May 1969 was entered into between the plaintiff's predecessor in title and the defendant whereby the premises were let to the defendant for a period of one year from the 1st December 1969 to the 30th November 1970 at a rent of $2,000.00 per month, which agreement was approved by the Tenancy Tribunal. By the agreement the defendant agreed to deliver up the premises to the landlord at the expiration of the term on the 30th November 1970.

3. The agreement was terminated by effluxion of time on the 30th November 1970 but since that time the defendant has continued to remain in occupation.

4. There was correspondence between the solicitors for the plaintiff and the defendant from the 21st November 1970 until the 6th April 1971, the first two letters of which were headed "without prejudice".

5. Mr. Asome for the defendant claimed privilege for the whole of the correspondence, although only the first two letters were headed "without prejudice", on the basis that the subsequent letters referred to the earlier. However in order that the correspondence can be considered to be privileged such correspondence must relate only to matters in respect of negotiations bona fide entered into for the settlement of disputes. Such protection will then extend to all subsequent correspondence although it is not headed "without prejudice". The first letter dated the 21st November 1970 written by the defendant's solicitors to the plaintiff's solicitors was clearly not written for the purpose of settling a dispute but merely amounted to a request for the defendant to remain in the premises as a licensee after the 30th November 1970 on the grounds of hardship arising as a result of the recent birth of her child. Accordingly the letters are not entitled to protection from production and are therefore admissible in evidence.

6. The other letters set out the terms and counter proposals upon which the defendant was to hold the licence to occupy the premises. The reply headed "without prejudice" from the plaintiff's solicitors to the defendant's solicitors' letter of the 21st November 1970 was dated the 8th December 1970. This letter set out the conditions upon which the plaintiff was prepared to allow the defendant to remain in the premises, which conditions were as follows:-

7. In reply to this letter the defendant's solicitors suggested that a licence be drawn up in the form suggested in their letter of the 21st November 1971 viz. that the defendant be allowed to remain in the premises after the 30th November 1970 as a licensee only but would vacate the premises within, say, one month of the plaintiff obtaining a building permit. No written agreement, however, with regard to a licence was in fact drawn up. Although the terms for the period of the licence were not finalised nevertheless it is clear from the correspondence that it was agreed between the parties that the defendant continued to occupy the premises only as a licensee. Ultimately as the defendant failed to give up vacant possession to the plaintiff in respect of the plaintiff's requests to do so a writ of summons was issued on the 27th July 1971.

8. It is not in dispute that the premises were built before the war and that a new storey was added in 1952. Mr. Asome submitted that although the ground floor of the premises is a pre-war building and comes within the meaning of the Landlord and Tenant Ordinance, the additional storey forms an entirely new building under section 3(1)(a) of the Landlord and Tenant Ordinance, to which the ordinance does not apply. As a result he contends that in respect of the additional storey the plaintiff is obliged to give six months' notice to quit under the Tenancy (Notice of Termination) Ordinance. Mr. Asome argued that one law can apply to the ground floor of the premises and one law to the additional storey. I do not accept in the absence of authority that this is a valid proposition with the result that the premises must be considered to be either an old building or an entirely new building. In other words by adding the new storey did the premises in this case become an entirely new building? In my opinion the new storey became an adjunct of the old and did not result in the premises becoming an entirely new building within the meaning of the Landlord and Tenant Ordinance. Accordingly the plaintiff is not required to give six months' notice to quit under the Tenancy (Notice of Termination) Ordinance.

9. In view of my finding that the whole premises are old premises Mr. Asome's argument with regard to the parties' rights to contract out of any protection against ejectment under the Landlord and Tenant Ordinance set out in clause 4(f) of the Tenancy Agreement is not relevant.

10. For the above reasons I shall grant the plaintiff judgment for possession together with mesne profits at the rate of $2,000 per month and costs. There will be a certificate for counsel.

11. Dated this the 16th day of November, 1971.

Representation: