Yeung Kam Man v. The Urban Council

IN THE COURT OF APPEAL

1987, No. 54
(Civil)

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BETWEEN

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Coram: Hon. Cons, V.-P., Fuad & Clough, J.J.A.

Date of hearing: 8^th July 1987

Date of delivery of judgment: 8^th July 1987

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JUDGMENT

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Cons, V.-P.:

1. This is an appeal from the decision of Jones, J., who, on the 14th May this year, refused an application for judicial review. The application had been brought by one Yeung Kam Man, who occupies a stall in the Aberdeen Market. The market building, I assume, is owned and managed by the Urban Council.

2. Mr. Yeung, and his family before him, have operated in that market for many years. Since 1983, when the market moved to a new building, he has occupied his stall by virtue of three consecutive agreements made with the Urban Council. All three agreements are in similar terms and couched in language appropriate to a tenancy agreement. Two clauses, in particular, are important. One is Clause 16 which reads:

"16. The Council may by notice in writing to the Tenant immediately terminate this Agreement for any breach by the Tenant or his agent of this Agreement or of any provision of the Public Health and Urban Services Ordinance, Cap. 132, or upon failure by the Tenant to give the requisite notice under clause 17 and on such determination the deposit specified in clause 6 shall be forfeited to the Council and no refund of rent or compensation shall be payable to the Tenant."

The other, Clause 17, does not depend upon misbehaviour. It reads:

"17. This Agreement may be determined by either party giving to the other party not less than one month's notice in writing expiring on the first day of January/April/July/October, and in that event the deposit specified in clause 6 shall be refunded to the Tenant, subject to any debt or liability by the Tenant to the Council under this Agreement or otherwise."

3. The second of the three agreements that I have mentioned was expressed to expire on the 31st December 1986. However, on the 11th October 1986 the Council sent to Mr. Yeung a letter which read, under, the heading "Stall No. BMN 38, Aberdeen Market Termination of tenancy in breach of Clause 16 of the Tenancy Agreement",

“I am directed to inform you that the Council, pursuant to By-law 6 of the Public Market By-laws. 1960 and clause 17 of the Tenancy Agreement of the above stall, hereby gives you notice that the tenancy of the stall will be terminated on 31 December 1986. Arrangement for the refund of your deposit will be made in due course.

You should yield up to the Council clear vacant possession of the stall on or before the due date.

Please also be informed that you have the right to apply, within fourteen days on receipt of this letter, to the Markets and Street Traders Review Sub-committee for a review of the termination of the tenancy.”

4. As already observed, Clause 17 expressly requires notice to expire on one of four particular days. In this instance it should have been 1st January, except that the agreement would, as I have already observed, have expired on the 31st December.

5. Whatever the true effect of the letter, Mr. Yeung decided to take advantage of the last paragraph and asked for a review of the Council's determination. A date for hearing was duly fixed, some time in 1987. The result of the hearing was communicated to Mr. Yeung in a letter dated the 26th February:

"Your application for review of the Council's decision to terminate your market stall tenancy in respect of Stall No. BMN 38, Aberdeen Market has been considered by the Markets and Street Traders Select Committee at the meeting on 18 February 1987.

I regret to inform you that after consideration on your case and the representations you made to the Review Sub-Committee of 10 January, 1987, the Market and Street Traders Select Committee has decided to maintain its original decision but to defer the determination of your tenancy until 1 April 1987.

Accordingly I now give you notice pursuant to Clause 16 of your tenancy agreement that your tenancy will be terminated on 1 April 1987."

6. It was signed, as was the earlier letter, by an Assistant Secretary to the Council.

7. As I read that letter I find it impossible to relate it to any agreement other than the second agreement, that is the agreement that had in fact already expired on the 31st December 1986. The opening words "Your application for review of the Council's decision" can only refer to the decision given by the letter of the 11th October, because that is the decision which Mr. Yeung asked the Council to reconsider. That too must be the "original decision" mentioned in the second paragraph, so that the tenancy, the determination of which is purportedly deferred to the 1st April, can again only be the second tenancy. The repetition of that date in the third paragraph, together with the introductory word "Accordingly", shows that the fresh notice sought to be given, this time under Clause 16, relates to the same second tenancy.

8. It might be thought that with Mr. Yeung's remaining in occupation, and presumably paying rent for January and February the grant of a new tenancy from month to month, but otherwise on the same terms as before, would be implied. That is not possible however, because on the 29th December 1986 the Council had expressly granted a new tenancy to Mr. Yeung, for three years and at increased rents commencing from the 1st January 1987. It may be that the Urban Council intended, by letter of 26^th February, to bring that new tenancy to an end. But for the reasons I have given, in my view the Council has not done so. And until it does, Mr. Yeung is entitled to remain in the market and occupy his stall. In that circumstance his application for judicial review was completely misconceived.

9. I have approached the matter so far on the assumption that the three agreements were in fact "tenancy agreements”. If that is correct, interesting questions may have to be decided on some later occasion. However if that is not correct, and the agreements are no more than contractual licences to occupy, I see no difference of principle involved and would still come to the same conclusion.

10. Argument on these lines vas apparently not raised in the court below. The judge directed his consideration to other factors. Nevertheless, for the reasons that I have just outlined, I think that he came to the right conclusion. For my part I would dismiss the appeal.

Fuad J.A.:

11. I agree. Like my Lord the Vice-President I am unable to construe the letter of the 26th February 1987, which he has just read, as determining the agreement which was reached between the parties on the 29th December 1986 for what is called "a new tenancy agreement” to run from the 1st January 1987 for three years, whether this agreement is correctly to be regarded as a tenancy agreement or a contractual licence.

12. Therefore, for the reasons given by my Lord, I too would dismiss the appeal.

Clough, J.A.:

13. I agree with both the judgments which have just been delivered.

Geoffrey T.L. Ma (M/s Livasiri & Co.) for Applicant/Appellant

David Fleming and J. Li, Crown Counsel for Respondent/ Respondent