Chiu Ching Wan v. Lui Fuk Kam
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 564 OF 1971 _______________ BETWEEN
_______________ Coram: Cons, D.J. in Court _______________ JUDGMENT _______________ 1. This is a claim by a landlord for 6 months’ arrears of rents. His evidence is that in November 1969 he verbally granted to the defendant a monthly tenancy at the rent of $440. The premises in question are business premises. In August 1970, being desirous to sell the premises, he served on the defendant a 6 months’ notice to quit after receipt of which the defendant has failed and refused to pay any further rent. In December, he says, there were certain negotiations between them with a view to the purchase of the premises but the negotiations came to nothing. The notice to quit expired on the 28th of February this year but the defendant has failed to hand over the premises. The landlord’s evidence is substantiated by that of his brother who acted as rent-collector on his behalf. 2. The defendant’s evidence is very much at variance with this story. According to him it was not an oral monthly tenancy but a written five year lease, which, after completion by the defendant, the landlord has retained under the pretext of having it duly stamped. Despite requests he has at all times refused to deliver a copy to the defendant. Following the notice to quit in August the defendant made several unsuccessful attempts to contact the landlord finally doing so in October. The meeting was stormy. The landlord intimated that without a copy of the written agreement the defendant did not have a leg to stand on. Eventually, after refusing an offer to purchase, the defendant was forced to acquiesce and agreed to vacate by the end of the following February, the landlord in his turn agreeing to take the two months’ deposit paid by the defendant as rent for the months of September and October already due and to waive the rent for the following four months to compensate the defendant for money expended on decoration and the installation of electricity. 3. The defendant moved out more than one month before the agreed date, namely on the 8th of January, having purchased similar premises 2 doors away. On that date, he says, he informed the landlord’s a brother of his move and accepted that brother’s invitation merely to leave the key in the outside of the lock when he had finished. He was therefore very surprised to receive a letter from the landlord’s solicitor (Ex.2) a few days later demanding 5 months arrears of rent. His complaint to the landlord’s brother invoked the reply that the letter had been sent for fear he might not move out, but that since he had done so, things would be all right. When he again complained to the brother concerning a second similar letter (Ex.3) sent one month later to his new address, the brother retorted that it was no concern of his. In due course the present writ was served. 4. The evidence of the defendant is supported by that of a business associate, a Mr. WONG Kam-chuen, who says that in November of 1969 the defendant showed him a printed copy of a tenancy agreement bearing the name “Chiu” something “Tong”. 5. These are the two conflicting stories with which I am faced. I was able to obtain little assistance from the demeanour of the respective sets of witnesses in the witness in the witness box and I have come to my conclusion with no great confidence. It is based primarily on this, that I find it difficult to believe that the defendant should have invented so unusual a story as that which he has put forward, but even more difficult to believe that the landlord having deliberately cheated the defendant out of possession of his long lease should then, as soon as success on this issue had been achieved, not only immediately attempt a doublecross on the financial aspect but pursue that attempt with every legal power at his disposal. I therefore find on the balance of probabilities that the tenancy granted by the landlord to the defendant in November 1969 was a monthly tenancy. It follows that it was duly determined as from the end of February 1971 by the undisputed notice to quit. The defendant does not deny that rent has not been paid since September 1970. 6. In his amended defence the defendant SEEKS TO SET OFF THE SUM OF $880 paid by way of deposit at the commencement of his tenancy. The landlord objects on the ground that defendant has not yet vacated the premises. This I do not accept. It may well be that the tenant has not directly returned possession to the landlord but I am satisfied that the landlord was not long in becoming aware of the defendant’s removal and at some stage, at least prior to the issue of the writ, has resumed possession on his own account. Otherwise he would have included an appropriate claim in his writ. It may also be that the deposit was security for matters other than non-payment of rent or failure to vacate, but no other matter has been pleaded or dealt with in evidence and I therefore assume that these were the only preconditions for its return. The sum may therefore be set off in this action. 7. In the circumstances as I find them it is not necessary for me to deal with Counsel’s submissions on the position had I accepted the defendant’s version of events, but I may add that in my opinion his attempted surrender would then have been completed by the landlord’s actual resumption of possession. 8. Judgment is accordingly entered for the plaintiff in the sum of $1,760 and costs with certificate for Counsel.
Mr. Zimmern instructed by Yung, Yu, Yuen for Plaintiff. Defendant in person. |