Wong Kwok Ma and Others v. Chan Mo Ki and Another

DCCJ 3882/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3882 OF 2004

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BETWEEN

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Coram:  H.H. Judge Chow in Chambers

Hearing date:  7^th March, 2005

Date of handing down Decision:  3^rd June, 2005

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DECISION

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1.By this application, the Plaintiffs seek the following remedies:-

(a)  summary judgment under Order 14 rule 1, Rules of the District Court, for possession of the land (“the Land”) set out in paragraph 1 of the Statement of Claim;

(b)  the determination of two issues of law set out in the Schedule to the Summons, pursuant to Order 14A rule 1, and consequential upon such determination, judgment for possession be entered against the Defendants, and for mesne profits to be assessed;

(c)   the defence be struck out under Order 18 rule 19 on various grounds, and consequential upon the striking out order, final judgment for possession of the said land be ordered.

2.On 22^nd July 1997, the Land was let by the Tso to the Defendants under a written annual tenancy agreement for the term of one year to commence on 22^nd July 1997 at an annual rent of $300.  The 2^nd Defendant issued a cheque for $300 made payable to the manager of the Tso as annual rent payable under the tenancy agreement.

3.On 14^th March 1998 the Land was assigned by the Tso to the 1^st Plaintiff at a consideration of $0.95 million.  On 2^nd March 1999 the 1^st Plaintiff divided the Land to himself and to the 2^nd to the 12^th Plaintiffs.

4.It is the Plaintiff’s case that on 19^th September 1998 the 1^st Plaintiff, as landlord, let the Land to the Defendants for agricultural use under a written English tenancy agreement for the term of one year to commence on 22^nd July 1998 at an annual rent of $300.  On the same day, he further granted the following 1-year tenancies to the Defendants:-

(1) A 1-year tenancy commencing on 22 July 1999 and expiring on 21^st July 2000 at an annual rent of $300;

(2) A 1-year tenancy commencing on 22 July 2000 and expiring on 21^st July 2001 at an annual rent of $300;

(3) A 1-year tenancy commencing on 22 July 2001 and expiring on 21^st July 2002 at an annual rent of $300. 

5.On 30^th August 2002 the 1^st Plaintiff gave a written notice to quit to the Defendants, giving them one month notice to deliver possession of the Land.  On 8^th July 2003, the 1^st Plaintiff instituted an action against the Defendants for possession of the Land under DCCJ 4027/03.  The parties reached an agreement of settlement on 25^th December 2003.

6.On 8^th January, 2004 the 1^st to 12^th Plaintiffs served a notice to quit, giving the Defendants not less than 6 months’ prior notice to deliver possession of the Land.  The notice to quit expired by effluxion of time on 21^st July 2004.  On 28^th July 2004, the 1^st to 12^th Plaintiffs instituted the present action against the Defendants, seeking possession of the Land on the basis of the determination of the annual tenancy of the Defendants.

7.It is the Defendants’ pleaded case that they were, and still are, tenants of the Land.  They plead that in 1961 the 1^st Defendant entered into an oral tenancy with Mr. Lau Ki Keung (the manager of the Lau Fuk Wo Tso (“the Tso”) at the material time) under which he was granted a tenancy of the Land without a fixed term or duration upon payment of an annual rent.  The 1^st Defendant is entitled to possession of the Land unless and until he gives notice of his intention that he no longer wishes to rent the same. 

8.The Defendants submitted that the oral tenancy contained terms inter alias that they may occupy the Land for as long as they wish until they give notice of termination.  Such a tenancy is not a genuinely a tenancy at will.  A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either the landlord or the tenant.  Although on its creation such a tenancy is expressed to be at the will of the landlord, or as the case may be, the tenant only, the law implies that it is to be at the will of the other party also, because every tenancy/lease at will must in law be at the will of both parties: Halsbury’s Law of England (4^th edition), Vol. 27(1), paragraph 168.  Therefore on the pleading, what the Defendants alleged is an oral tenancy at will, determinable at the will of either the landlord or the tenant.

9.The Defendants raised the issue of non est factum relating to the yearly tenancies referred to in Paragraph 4.  The Defendants said that they were acting under the mistaken belief that they were entering into tenancy agreements with the late father of the existing manager of the Tso, but not with the 1^st Plaintiff, and that they had been told and believed that the transaction was merely a variation of rent for the existing oral tenancy with the Tso, which continued on the same terms.  So effectively they alleged that they were misled about the terms of the tenancies.  There is nothing in the Plaintiffs’ affirmation to refute the allegations.  There is a triable issue here.  But on the assumption that ultimately the Defendants succeed on this issue, and that the tenancy agreements do not bind them, their tenancies are still tenancies at will, which were determined by the aforesaid notice served on 8^th January, 2004.  In the result there is no arguable defence raised by the Defendants.  Therefore summary judgment under Order 14 rule 1 has to be granted in favour of the Plaintiffs, and it is unnecessary to proceed to deal with the applications under Order 14A and Order 18, rule 19(1) of the Rules of the District Court.

10.I make the following orders:-

1. There be final judgment for an order for possession in favour of the Plaintiffs against the Defendants of the Land set out in paragraph 1 of the Statement of Claim; and

2. There be interlocutory judgment in favour of the Plaintiffs against the Defendants for mesne profits to be assessed, at a date to be fixed.

3. The applications under Order 14A rule and Order 18 rule 19(1) of the Rules of the District Court, be dismissed.

Costs

11.I make an order nisi, to be made absolute in 14 days’ time, that the Defendants do pay the costs of these applications, to be taxed, if not agreed, with Certificate for Counsel.

The 1^st to 12^th Plaintiffs : represented by Mr. K.M. Chong and Ms. Emma Wong, instructed by Messrs Cheung, Chan & Chung, Solicitors.

The 1^st and 2^nd Defendants: represented by Mr. Y. Fan of Messrs Fan Wong & Tso, Solicitors.