Wong Chi Sham v. Chan Man Kuen
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CACV000010/1983 IN THE COURT OF APPEAL Civil Appeal No.10 of 1983 BETWEEN
Coram: Hon. Leonard, V-P., Fuad, J .A. & Mantell, J. Date: 9th February, 1983 __________ JUDGMENT ____________ Leonard, V-P. : 1. This is an appeal from part of a judgment delivered by Deputy Judge Hon on the 9th September, 1982. The part of which complaint is made is that which ordered the appellant who was the 2nd defendant below to pay to the respondent arrears of rent and/or mesne profits at the rate of $1,350 per month and maintenance fees of $80 per month from the let of October, 1981 later increased to $110 a month until delivery up of vacant possession. The facts are as follows. 2. By the Particulars of Claim in a Writ dated 30th of April 1982 the respondent sought possession of certain premises against three defendants, the let defendant being the tenant of the premises and the 2nd, this appellant an occupant of them on the ground that the 1st defendant had purported to have transferred the tenancy to the appellant and another whereby a forfeiture arose. In his defence the 2nd defendant (appellant) admitted that he had been in possession of the entirety of the premises. 3. As against the 1st defendant the respondent sought possession, rent at $1,350 per month to the date of the issue of the Writ, mesne profits to be assessed and management and cleaning fees. As against the appellant and the 3rd defendant, he claimed possession and "damages to be assessed" and costs. None of the defendants appeared at the hearing but there is nothing on the record to indicate that any amendment to the Particulars of Claim was sought although at the hearing the evidence appears to have been of subletting and breach of the tenancy agreement and not of an unlawful transfer of the tenancy. 4. The judge said no more than:
5. We have been informed by Mr. Yu that in fact evidence was sought to be given as to the loss suffered by the plaintiff by being out of possession of the premises. The judge made the following Order : "Judgment for the plaintiff:
It is from part of that Order and that alone that this appeal is brought. 6. It appears from Affidavits sworn by the appellant that he vacated the premises in May and that he believed that as a result he had delivered up vacant possession and thought he need not bother himself further. He was wrong. A writ of possession and fi fa. was issued on the 7th of October 1982 and he was arrested by the bailiff. He was released on payment of $14,736.10. The writ of fi fa. was expressed to be for various sums expressed as arrears of rent/or mesne profits and management and cleaning fees. 7. Before us Mr. Yu, with considerable ability and ingenuity, has sought to support the Order of the trial judge suggesting that by his reference to mesne profits, management and cleaning fees he was in fact assessing damages. It appears to me, however, that to anybody, particularly any layman, reading the Particulars of Claim which set out the alleged breaches of covenant by the 1st defendant and the transfer of the tenancy and a forfeiture as a consequence of this and who had regard to the words "damages to be assessed" it would be by no means clear that the plaintiff was claiming against the 2nd defendant for damages for possession relating back to the date on which the right to forfeiture accrued. The claim was for damages "to be assessed" and one might be pardoned for concluding that they would be ordered to be assessed at some future hearing of which he would have notice. 8. The pleading is insufficient to indicate that a claim for damages based on mesne profits, management and cleaning fees and relating back would be put forward. It does not indicate with clarity the nature of the claim made against the appellant. If the trial judge was assessing damages when he made the Order quoted I consider that he was not entitled to take this course without amendment of the Particulars of Claim. Any such amendment would necessitate re-service of the Particulars otherwise the 2nd defendant could be said to have been prejudiced by an Order which he had not and could not reasonably have anticipated would be made. As I see it the appellant was ordered to pay something unclaimed against him of which no notice had been given to him. This is clearly unjust. I consider that the appeal must be allowed with costs and the sum of $14,736.10 returned to the appellant. 9. I would like to pass over in silence what happened after the appellant's arrest. The appellant's solicitors took out a summons before the trial judge on 27th November 1982. That application was misconceived because the judge was then functus since the time for a review had long since passed. The application was treated as withdrawn. I only mention the matter because the appeal bundle has been cluttered by the addition to it of the papers relating to that application. The bundle was also deficient in that there was missing from it the defence in which the defendant admitted possession of the entirety. This might have been relevant because one of the grounds of appeal was that the appellant should not have been made liable for the entirety of the mesne profits when he was in possession of part only of the premises. The basis for that ground was never in issue in the Court below and had this appeal turned on it I should have formed a very different opinion. I consider that no costs should be allowed in respect of the preparation of the appeal bundle as it stands.
Fuad, J. A. : 10. I agree that as the pleadings stood at the date of the hearing the Deputy Judge was not entitled to give judgment against the appellant in the terms set out in paragraphs 2 and 3 in his Order. I would also allow the appeal.
Mantell, J. : 11. I respectfully agree and would allow the appeal.
Representation: Mr. Thomas Lai (S.T. Poon & Co.) for Appellant (2nd Defendant). Mr. Benjamin Yu (Iu, Lai & Li) for Respondent (plaintiff). |