Luen Wo Land Investment Co Ltd v. Yau Wai Nam

DCCJ556/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 556 OF 2005

________________________ 

Before: Deputy District Judge Herbert Au-Yeung in Court

Date of Hearing: 8 September 2010

Date of Delivery of Decision: 8 September 2010

_____________

Decision

______________

1.The defendant suggested that he should be allowed to rely on an argumentthat he was in fact a protected tenant under Part IV of the Landlord and Tenant (Consolidation) Ordinance (Cap.7, Laws of Hong Kong).

2.With respect, I do not agree.

3.Firstly, this line of defence has not been pleaded. Order 18 rule 8(2) of the Rules of the District Court provides that:

“…a defendant to an action for recovery of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.”

4.In my view, it can only be right for the defendant to do so, otherwise, the purpose of having pleadings would be defeated, for the plaintiff would not be able to appreciate from the pleadings what case it has to meet at the trial.

5.Secondly, not only this line of defence is not pleaded, it is contrary to the defendant’s pleaded case.

6.In paragraph 10(b) of the Defence and Counterclaim, it was pleaded that after the expiry of the original tenancy agreement, the defendant has continued to rent the subject land on a monthly basis.  This is inconsistent with the defendant’s new proposed case that the tenancy was in fact continued by virtue of the Landlord and Tenant (Consolidation) Ordinance right after the expiry of the original term.

7.Mr. Wong for the defendant at one stage also suggested that since all the facts in support of proprietary estoppel were before this Court, he should be allowed to run the argument of proprietary estoppel. He subsequently abandoned this line of argument as he fairly accepted that he should not go through the backdoor in introducing this argument again in the light of my dismissal of his application to amend the Defence and Counterclaim yesterday.  In my view, this must be right because it is well established that estoppel must be specifically pleaded in the pleadings. 

8.For the above reasons, I would dismiss the defendant’s application with costs with certificate for counsel, such costs to be taxed if not agreed. The defendant’s own costs shall be taxed according to Legal Aid Regulations.

Mr. C. Y. Li, instructed by Messrs Iu, Lai & Li, for the plaintiff

Mr. Philip Wong, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the defendant