Lee Yuk Lan v. Lee Che Tak and Another
Read the full judgment text of DCCJ 2787/2002 on BabelCite. This District Court judgment.
1. The plaintiff sought possession against the 2 nd defendant, mesne profits for 6 years, and costs. The 2 nd defendant counterclaimed reciprocal reliefs.
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DCCJ 2787/2002 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2787 OF 2002 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge E. Yip in Court Date of Hearing : 13th November 2006 – 15th November 2006 Date of Handing Down Decision : 29th November 2006 _________________ DECISION _________________ Introduction 1.The plaintiff sought possession against the 2nd defendant, mesne profits for 6 years, and costs. The 2nd defendant counterclaimed reciprocal reliefs. The issues for trial 2.I have to determine the following:
The plaintiff’s evidence 3.The plaintiff gives evidence. She calls no witnesses. 4.In 1963, the plaintiff’s mother as tenant resided with the plaintiff and other family members in the premises. There were 2 bedrooms. One Mr. Hui Kam Foon was the rent collector on behalf of the owner. 5.In 1975, when the plaintiff’s other family members left, the plaintiff remained there and took up the tenancy. She paid rent to Mr. Hui directly. 6.In 1986, the plaintiff moved out of the premises. 7.In 1988, the plaintiff in writing sublet the premises to one Mr. Lee for a term of 2 years [B2: 33]. 8.In 1990, one bedroom was occupied by the plaintiff’s father-in-law gratuitously. The plaintiff orally sublet the other bedroom to her nephew (the 1st defendant) at $1,500 per month. The term of tenancy prohibited subletting. The 1st defendant requested to have a friend (the 2nd defendant) reside there as well. The plaintiff agreed. 9.In 1991, the 1st defendant started to default in paying rent to the plaintiff. 10.In 1992, the father-in-law moved out of the premises. The 1st defendant requested to take up the entire premises. The plaintiff did not agree initially. Afterwards she agreed. It was an oral tenancy. The plaintiff cannot recall the rent. It was not less than $1,500 per month. 11.In October 1992, the plaintiff began to default in paying rent to the owner. 12.In 1993 or 1994, the 1st defendant changed the lock of the premises. Afterwards, the plaintiff was unable to gain access to the premises. She had left notes at the doorway but to no avail. Since then, she has not been into the premises. 13.In 2001, the plaintiff demanded $108,000 (rent for 6 years) from the 1st defendant. The 1st defendant failed to pay up. 14.On 4 December 2002, the plaintiff obtained default judgment against the 1st defendant for rent and/mesne profits for 6 years until the delivery of vacant possession, and costs. 15.In late 2005, the 2nd defendant was joined as a party in the present proceedings. The plaintiff claims against the 2nd defendant:
The 2nd defendant’s evidence 16.The Re-re-amended Defence and Counterclaim, the 2nd defendant admitted being in physical occupation and possession of the premises by himself at the material times. The plaintiff did not join issue with the 2nd defendant on this. 17.The 2nd defendant does not give evidence or call witnesses. My findings 18.There is no challenge of the plaintiff’s evidence. I also find her an honest and reliable witness. I have considered all the submissions and authorities. Unfortunately, it appears that both parties have missed the focus of the case. The plaintiff’s and the 2nd defendant’s respective rights, if any, in the premises 19.As regards possession, Mr. Chan for the 2nd defendant argues that the plaintiff was herself only a licensee of either the registered owner or her mother because she had never taken the place of her mother as the tenant vis-à-vis the registered owner. The plaintiff’s payment of rent directly to the registered owner would constitute her a licensee for consideration. This was not a proprietary right. I think that she was only a licensee under her mother than a tenant of the owner because there is no evidence to suggest that the owner had regarded her as the tenant in place of her mother or given her any licence independently. She had not ever sought the express consent of the owner, nor, I think, could consent be implied by the receiving of rent from the plaintiff by Mr. Hui, whom she described as merely “the rent collector on behalf of” the owner. 20.However, even assuming that the plaintiff had no proprietary rights, it remains an undisputed fact that it was by her consent, which was expressly sought by the 1st defendant for and on behalf of the 2nd defendant, that the 2nd defendant was allowed to move in and stay in the premises. The plaintiff had given the 2nd defendant a licence to stay. The license was in recognition of the plaintiff’s rights. He could stay on for free until the plaintiff revoked the licence. Whilst staying under the licence, he could not at the same time set up an adverse possessory title, which would be in denial of the plaintiff’s rights. These would be inconsistent statuses. In the present case, I find the real contest to be between the rights of the plaintiff (the licensor) and the 2nd defendant (the licensee). First, the plaintiff’s rights must be superior to the 2nd defendant’s. Secondly, the 2nd defendant cannot set up an inconsistent possessory title in tandem with the licence. 21.As regards mense profits, the licence was gratuitous. Unless the terms of the license had changed or the licensee remained beyond a reasonable time after its revocation, the licensee should not be liable to pay any sum of money, mesne profits or otherwise, to the licensor. The plaintiff’s reliefs, if any 22.The plaintiff claimed possession against the 2nd defendant. I do not find her rights, as a licensee of her mother, capable of supporting this claim. The plaintiff’s licence allowed the 2nd defendant to stay in the premises but the plaintiff did not claim revocation of the licence hence an order for the 2nd defendant to move out of the premises. Despite that, the Re-re-amended Statement of Claim could be regarded as an unequivocal notice to revoke the licence. The 2nd defendant would have no option but move out of the premises within a reasonable time. As the present case is capable of supporting this relief although not specifically prayed for, and there is no unfairness to the 2nd defendant, I shall grant an order that the 2nd defendant do move out of the premises within a reasonable time. The parties may apply to me for further directions as to the time. 23.The 2nd defendant has been a gratuitous licensee throughout. There is no basis for any mesne profits. The plaintiff’s counsel conceded it to be the case. The defendant’s reliefs, if any 24.The 2nd defendant in substance counterclaimed an order to refuse the plaintiff’s claims. It was a misstatement (in para. 4(i) of the Re-re-amended Defence and Counterclaim) for the 2nd defendant to allege being in “possession” of the premises. The truth is, being a licensee of the plaintiff, he has never obtained possession, as opposed to merely being allowed to stay in the premises. Literally, his counterclaim should succeed despite his having defended on the wrong footing. Costs 25.I make an order nisi for the 2nd defendant to have half of the costs of the present action. This order shall become absolute after 14 days from today.
The Plaintiff: represented by Miss Winnie Tsui instructed by Messrs. Chan, Wong & Lam, Solicitors. The 2nd Defendant: represented by Mr. Richard Chan instructed by Messrs. Joseph Leung & Associates, Solicitors. |