Ip Lee Hang v. Choi Hip Hing

DCMP000004/1947

IN THE SUPREME COURT OF HONG KONG

SUMMARY JURISDICTION

TENANCY TRIBUNAL

APPEAL No. 4 of 1947

Coram: Mr Justice E.H. Williams

Date of Judgment: 29 March 1947

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JUDGMENT

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1. This appeal is against the decision of a Tenancy Tribunal refusing to give an order for eviction in respect of 190 Lockhart Road, ground floor, to the appellant (applicant) who is the owner of the whole house. On the 25th December, solicitors for appellants filed a statement setting out the various grounds on which it was claimed the Tenancy Tribunal had erred in refusing to make the order but at the hearing of the appeal one ground alone was argued namely that the Tribunal was wrong in law in holding that the proclamation was applicable to the case of the tenancy agreement which existed between appellant and respondent.

2. The relevant paragraph of the agreement as set out in the agreed English translation is:-

"1. The owner shall refrain from collecting from the tenant any rent in respect of the premises for 8 months commending from the date of the agreement, i.e. from the 25th day of the 9th moon to the 25th day of the 5th moon in the 55^th year (of the Chinese Republic) (          to          ).

On the expiration of the term this agreement shall be cancelled and be void. If it is desired to continue the tenacy it is necessary that both parties shall come to terms. Unless the terms are agreed upon by both parties the tenant must remove."

3. Counsel for appellant contended that the effect of the decision in T.T.A. No.41/46 (Mahuvawalla v. Iranee) was that the only form of tenancy protected was one wherein the tenant paid a pecuniary rent to the landlord : therefore the present agreement whereby the tenant was to do certain repairs at his own expense, the landlord waiving the rent for the period, was outside the proclamation.

4. Counsel for respondent sought to differentiate the present case from the Mahuvawalla case in that here the agreement was in effect that the tenant paid a lump sum equivalent to 8 month's rent by way of repairs. In Mahuvawalla's case, the equivalent of services by way of employment was a nebulous sum - here it was something definite viz., a pecuniary payment equal to 8 month's rent. It was immaterial that the amount of rent payable was, in fact, to be decided at the end of the period and not at the beginning. In support of his argument he referred to a passage at page 4 of the Judgment of Gould J. in Mahuvawalla's case which reads 'As to whether the true construction of the word as used in the proclamation is quite so narrow (i.e. "rent" means rent payable in money and money alone) I am in some doubt but I am convinced at least that its use in the proclamation is inconsistent with a construction which includes services by way of employment'.

5. The decisions in the Mahuvawalla case have settled that rent in the proclamation means pecuniary rent. The wording of the Proclamation stresses not only the word 'rent' but also that the payment must be direct to the landlord e.g. Article 1 of the proclamation. In the agreement under consideration, there is no sum payable to the landlord for the 8 months. In fact no definite sum is mentioned as being the equivalent of the rent. Clearly the landlord had no such sum in mind when the agreement was made. He has fixed no minimum which must be spent on repairs and a Tribunal, in deciding rent at the expiry of the agreement, has nothing to guide it as to what rent should be payable. Had a definite sum been mentioned then the arguments for respondent might have carried more weight with me.

6. As it stands, I cannot find that the case differs materially from Mahuvawalla's case and I therefore hold that the decision of the Tribunal should be reversed.

7. Appeal allowed.

8. Premises to be vacated within 30 days from date hereof subject to payment within 14 days from to-day of costs in the sum of $250.