Mui Yu Investment Ltd. v. Shiu Kin Wah and Another

CACV000105/1986

BETWEEN

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Coram: Cons, V.-P., Yang & Kempster, JJ.A.

Date of hearing: 17th October, 1986.

Date of delivery of judgment: 17th October, 1986.

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JUDGMENT

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Cons, V.-P.:

1. This is an appeal against the decision of His Honour Judge Scriven, sitting alone as President of the Lands Tribunal whereby he made an order for possession of land in Tuen Mun. The land is registered under the Crown lease as agricultural land, but it has not been used as such for some considerable time at least.It appears to be currently occupied by the Plaintiff's sub-tenants, one of whom operates a clothing factory and the other a factory of some other kind.

2. The Respondent may be conveniently described as the present owner and acquired his title in April 1978. Long before that, in July 1971, the Appellant took over a lease which had been granted by one of the Respondent's predecessors in title. It was a lease for 9 years, to expire at the end of February 1978. Rent had been fixed at $200 a month, to increase by 30% each three years. When that lease expired the Appellant remained in possession through his sub-tenants.

3. In January 1985 he was served with Notice to Quit by the 31st July 1985 or by the end.of the next completed six-month period of his tenancy.

4. The defence in the proceedings which eventually came to pass in the Lands Tribunal was that the grantor of the lease subsequently promised, in August 1971, following typhoon damage to some chicken sheds that were then on the site, although not used as such, that if the Appellant should rebuild and improve those structures, then he could stay on the land as long as he liked and the rent would remain at $200 a month.

5. The Appellant's evidence was that in reliance thereon he spent a quarter of a million dollars on putting up industrial premises; and it has not been denied that none of the Respondents predecessors in title since then has ever asked the Appellant for more than $200. It was therefore claimed that the Respondent was estopped from recovering possession, alternatively that he had been orally granted a lease to extend for the rest of his life and which had been validated, if I might use that word, by way of part performance.

6. The proceedings before the learned judge took two days. At the conclusion he rejected the evidence of the Appellant. He did not believe that the Appellant had ever been promised such a tenancy as. he described although he accepted that the landlord may have made some concession with regard to a reduction in rent, or rather that there would be no increase in rent for the remainder of the period.

7. The judge tells us that he delivered his judgment immediately at the end of the hearing but, curiously, the document we have is dated as at the first day of the hearing, and it is not readily apparent whether it is a transcript of what he said at the time or an independent record prepared subsequently. It matters not though, as counsel agree that it substantially reflects his comments. Unfortunately some of them relate to-the legal effect of the factual position that the Appellant had sought in vain to establish.

8. One line of appeal, as put forward in the written grounds and pursued by junior counsel, suggests that the judge's appreciation of the legal effect was incorrect; and that being unduly influenced by that mistaken appreciation' he had wrongly rejected the Appellant's evidence.

9. It is pursued by leading counsel in a slightly different form, that the judge's finding was not in effect one of fact. As far as facts went, it is suggested, the judge really came down in the Appellant's favour; his conclusion as to the lease, or lack of it, was, as he expressed it, one of law.

10. For my part I am unable to agree with that submission. I read the judge's words clearly as a finding of fact, and equally clearly, that he was influenced to that finding, - apart perhaps from his appreciation of the Appellant as a witness, for where there was conflicting evidence the judge preferred the evidence of another witness to that of the Appellant, - by the facts (1) that the suggested variation of the original lease had not been reduced to writing and (2) that the suggestion was in any event inherently implausible in that it was not the kind of agreement that a landlord could reasonably be expected to have made.

11. The existence or otherwise of the agreement or promise that the Appellant spoke of can only be a question of fact. The conclusion which the judge came to was open to him upon the evidence. For my part I am not prepared to interfere.

12. The other arguments put forward in support of the appeal, save two, rely upon that promise or agreement's having been established. It is not necessary therefore to express any opinion.

13. One of the other two grounds depends upon the registration of the land as agricultural land. It seems to me, if I understand the argument correctly, to require us to ignore what happened when the 9-year lease expired. I am not willing to do that.

14. The second depends upon the fact that at the time of the trial the 9-year lease was unstamped. No objection was taken to its production and apparently now it has been stamped together with a penalty fee. In any event it seems to me that it is quite irrelevant to the one matter material to these proceedings both here and below.

15. For these reasons I would dismiss the appeal.

Yang, J.A.:

16. For the reasons advanced by my Lord the Vice-President, I too would dismiss the appeal.

Kempster, J.A.:

17. I agree and I also have nothing to add.

Representation:

Brook Bernacchi, Q.C. & Sui See Chun (M/s Kwan & Kwan) for 1st Respondent] Appellant

Louis K.Y. Chan (M/s Leo K.W. Lok & Co.) for Applicant/Respondent