Leung Man Chi v. Kan Yi Ken and Another

LDLA000516/1984

Head Note

IN THE LANDS TRIBUNAL OF HONG KONG

APPLICATION NO. 516 OF 1984

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Coram: H.H. Judge Eric Li in Court.

Date of Judgment:

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EXTEMPORARY RULING

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1. This is an application by the applicant for possession of the suit premises on the ground of own use. A preliminary point of law arises as to whether acceptance of rent allegely in the form under the name of mesne profits for the period after the period of notice to quit had allegely expired and before the matter is heard constituted "waiver" in this case, i.e. vitiating the notice to quit.

2. The law on the matter is well settled by Clarke v. Grant & Another 1949 1 All England Law Report 768 at 769 letters A to C, particularly neatly summarised by the then Chief Justice, Lord Goddard, adopting the ratio from Lord Mansfield many years ago. The issue therefore is, one of "Quo Animo" why the rent was received, and what was the real intention of both parties? If authorities appears to be lacking one needs only look to Woodfall on Landlord and Tenant, 27th Addition paragraph 2037, and the Hill and Redmans on Law of Landlord and Tenant at footnote (d) under paragraph 410, and cases cited thereunder in both. The short question is what was the intention of the parties at the time when the tenders of payments were accepted?

3. The evidence adduced for the applicant reveals that by exhibits A1 Solicitors for the Applicant accepted the tender of rents sent by registered post by way of postal money order made out in the name of the Landlords for the months of February, March and April, and by A2, September and October, but took care to acknowledge receipt in writing as for mesne profits for those periods. Let me say at once that no evidence was led as to whether these two receipts were sent to the Respondent by registered post, let alone whether the respondent had in fact received them. No efforts apparently were made by the solicitors to ensure the due receipt of these two receipts apart from presumably sending it by ordinary post. This is of course not a decisive factor in my Ruling, but merely as a side comment. For in the ordinary course of business, it is unlikely that the Respondent would not have received it.

4. What is strikingly strange is that for the months of May through August, similiar tenders by post were accepted but no receipts at all were issued. AW2, the Article Clerk gave an explanation that this was due to failure on the part of the applicant to sign the prepared receipts and return to solicitors for forwarding to Respondent for these four months. That by itself, has the legal effect of accepting rent simplicitor which in the normal course of business would be taken as waiver of notice to quit. Failure in communication between the Applicant and their solicitors as put forward in AW2's explanation even if were true, could not save the day for the Applicants, particularly when the latter were acting in person and might not have realized the legal difference between rent and mesne profits at all. In any event, the acceptance of the rent tender without reference to mesne profits for these four months were unqualified acceptance of rent tender. Subsequent receipt of the tender with care to acknowledge them as mesne profits in A2 for September and October could not, in law, save the waiver earlier on which had become a fait accompli as a waiver.

5. As a matter of comment, it was unwise on the part of the legal advicers not to make it crystal-clear in A1 and A2 that the acceptance of the rents tendered were under protest and without prejudice to the proceedings pending, as they had full knowledge that the Respondent were acting in person and proceedings in the Lands Tribunal are more relaxed and informal than in a formal Court. In the event, on facts special to this case I specifically find that the unqualified acceptance of rents tendered for the month of May through August without any reference to "under protest", "without prejudice" or "mesne profits" did constitute waiver vitiating the notice to quit.

6. In the course of checking the Court files I have just discovered and the Counsel confirms when I draw that to his attention that the notice to quit itself which was served on the 21st of February to expire on the 31st of March this year was defective in that, as it appears from exhibits A1 and A2, that the notice did not expire at the end of the currency or duration of tenancy which is on the 14th day of the calendar month with the tenancy commencing on the 15th day of each of such months when Sections 52 and 53 of Cap. 7 came into play apparently upon the expiration of the original tenancy agreement. This defective notice by itself would result as it does in the dismissal of this application. In this regard I am fully aware that at least to some quarters the question whether or not notice to quit is a prerequisite to recovery of possessions on statutory grounds under Section 53 is an open one. However, as Counsel has conceded at the commencement of this case that such notice is a prerequisite, and in fact, I venture to say no solicitor in town would take the risk in favour of "no notice". I must not endeavour to drag the parties one of whom is in person and the other is not of substantial means into the deep water of lengthy and expensive, legal entanglement here and above and perhaps beyond.

7. In conclusion, this application must be dismissed, both for want of valid notice to quit and on the ground of weiver, and is so dismissed.

8. For the purpose of the record, the law on the validity of notice to quit is set out at paragraph 1/2018 in Woodfall on Landlord and Tenant, Volume 1, 1978, 28th edition

"But the mordern law is that since a yearly tenancy in straightness expires at mid-night of the day before the anniversary of its commencement, the notice may be made to expire either on the anniversary of commencement or on the date before the anniversary of commencement and either is good, and the like rule applies to weekly or monthly tenancies. "

9. In Precious v. Reedie 1924 2 K.B. 149 it was held that the notice to quit was invalid, inasmuch as it did not expire at the end of the monthly terms. In Lemon v. Lardeur 1946 1 K.B. 613 at 616 in the words of Morton, L.J.

10. This ratio decidendi was adopted and confirmed in Grate v. Miller 1947 2 All England Law Report 45.

11. Finally in passing on waiver, intentions of the party on the one hand must be two-sided, i.e. mutual. But on the other hand, it cannot be one-sided. In other words, it was not what the applicant in this case thought that is decisive but it was what that was conveyed to the Respondent and understood by the Respondent that matters. I had in effect held on facts that the unqualified acceptance of rent for the months of May through August without the caution of mense profit, etc. had the effect of misrepresenting to the Respondent that it was an acceptance simplicitor hence waiver.

12. As Counsel rightly and most probably reminds me that I should say something on his part of the submissions relating to Sections 52 and 53 of Cap. 7. Very briefly, Mr. Chan relies on the wordings of these sections that the tenancy continues over after the expiration of the original tenancy as a statutory tenancy. This is of course true, and the suit premises are statutory protected tenancy. However, I fail to see how these can be of any assistance to the applicant. The sections are for the protection of the tenants not necessarily to dispense with service of valid notice to quit from the Landlord which for the purpose of this proceeding has been conceded to be a must, a condition precident to recovery of possession on the statutory ground under Section 53.

Representation:

Mr. Louis K.Y. Chan inst'd by Messrs Laurence Pang & Co. for applicants

Respondent : LEUNG Chau in person. present