Wing Tai Hang v. Dah Luen Investment Co Ltd
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CACV000112/1981 Headnote
IN THE COURT OF APPEAL
----------------- Coram: Hon. Leonard, V.P., Cons & Zimmern, JJ.A. Date of Judgment: 27th November, 1981. ----------------- JUDGMENT ----------------- Cons, J.A. : 1. The appellant before us is Mr. LAU Yim Chau. He is, or rather was, a tenant of two rooms on the 11th floor of a building in Queen's Road West. He trades there in the name of Wing Tai Hang, which is the name of the firm of which he is the sole-proprietor. Under that name he took a tenancy for two years of the premises in question, dating from the 19th September, 1978. 2. There was some dispute in the Court below whether that was a domestic or a commercial tenancy. The Judge found that it was a commercial tenancy and no complaint is made as to that finding. It therefore does not receive the protection of Part II of the Landlord and Tenant Ordinance. 3. On the 11th of March last year the solicitors for the landlord gave Mr. Lau notice to quit. The notice was of more than a six-months and was expressed to expire on the 19th September. It was not happily worded but was nevertheless a good notice. The authority for that is Harmond Properties Ltd. v. Gajdzis(1). Despite the notice Mr. Lau did not vacate the premises. Soon afterwards the landlord brought an action in the Victoria District Court and when it came on for trial His Honour Judge Caird made an order for possession, which he stayed for four months upon terms. 4. Mr. Lau, who appears in person before us, has put forward two grounds of appeal. Firstly he says that the notice to quit became void. He says this is so because that notice was superseded by a second notice, issued by the same solicitors, dated the 2nd June, 1980 and expressed to expire on the 19th of December. 5. There can be no factual merit in this point of appeal, because that second notice has long expired and Mr. Lau is still in possession of the premises. And there is unfortunately for him no legal merit in the point. It is well established that a valid notice to quit becomes effective the moment it is given. It cannot be withdrawn, nor can it be superseded by another notice. The present notice was valid, therefore the tenancy ceased on the 19th September and that point of appeal must fail. 6. Mr. Lau's second complaint is that the landlord started proceedings in the District Court before the second notice had expired. He thinks that is unfair and contrary to law and principle. There would be grounds for his complaint if the first notice to quit had in fact been bad. But, as I have just remarked, the first notice was good. His tenancy had already terminated by the time that the action was started. The second point of appeal must also fail. There is no need then to deal with the Respondent's Notice by which the landlord seeks to support the judgment on alternative grounds. 7. But we must deal with his cross-appeal. That also raises two points. 8. The summons contained a claim for mesne profits as from the 20th September, that is the day after the tenancy terminated. The Judge below would not in any event have been prepared to award mesne profits as from that date. He thought the proper day should have been the date of the summons. He relied upon a particular authority, Elliott v. Boynton(2), although, as he said, it was not on all fours with the present case. 9. For my part, and with every respect, I find that to be something of an understatement. The only similarity appears to be that they are both actions taken by landlords against tenants and include a claim for mesne profits. Elliott v. Boynton(2) was an action to enforce a right of re-entry for breach of covenant. And it is well established that a breach of covenant does not of its own accord terminate the tenancy. The tenancy continues until the landlord takes some positive act evincing his intention to bring it to an end. That act is usually, as it was in that case, the issue of a writ for possession. The mesne profits therefore run from that date. In the present case the notice to quit did terminate the tenancy. No further act was required from the landlord. The nesne profits must run from the expiry of the notice, that is from the 20th September. 10. The Judge assessed profits at the rate of $5,710 per month. Mr. Lau argues that they should be at the same rate as the rent that he had been paying previously. But he has given us no reason why we should think that the Judge's assessment was incorrect. At the date of trial the profits would have amounted to over $50,000. The Judge declined to deal with them unless the landlord were willing to limit his claim to $20,000 which is the limit of the District Court's jurisdiction in contract and tort. 11. Counsel for the landlord argues as his second point that the Judge was wrong to take that view. He says that the Judge had jurisdiction in one or both of two ways. The first was under Sections 35 and 36 of the District Court Ordinance, which give jurisdiction for the recovery of land or to determine any action in which the title to any hereditament comes in question, where the rateable value of either the land or the hereditament does not exceed $15,000. The rateable value of the premises we are concerned with was found to be $14,800, which places the action within the financial limits. 12. Whether either of these sections gives jurisdiction in the present circumstances is a matter that leaves room for argument. For my part I would prefer to express no opinion at the moment because the matter has been presented by counsel on only one side and I am satisfied that the second ground of jurisdiction put forward is correct. That relies on the general ancillary jurisdiction given by Section 48 of the Ordinance. In my view that section is sufficient to found an order for mesne profits where the principal claim is for recovery of the land. I draw support for my view from two sources. The first is that it is the natural implication from comments made by Evershed M.R. in Tideway Investment & Property Holdings Ltd. v. Wellwood(3). The second is that Section 39 of the Ordinance gives no entitlement to a plaintiff to have his case transfered to the High Court. That inclines me to think that it was not intended to exclude, merely by reason of passage of time, claims which were properly within the jurisdiction when first brought. For these reasons, I would dismiss Mr. Lau's appeal. I would allow the cross-appeal. I would vary the order below to include an order for payment of mesne profits at the rate of $5,710 per month as from the 20th September, 1980 until such time as possession is given and I would order that the respondent should have the costs of these proceedings. Leonard, V.P. : 13. I agree that this appeal should be dismissed for the reasons stated by Mr. Justice Cons. I too would allow the cross-appeal and order the appellant to pay mesne profits at the rate of $5,710 per month from 20th September, 1980 until delivery up and order that the appellant should pay the costs of the appeal. Zimmern, J.A. : 14. I also agree that the appeal should be dismissed and the cross-appeal allowed to extent which has been set out by my brother Cons. Whilst I want to pay a tribute to Mr. Chain for the conduct of cross-appeal, I wish to say something on the appeal. The appellant in the Court below was represented by solicitors who adopted a certain defence which failed. He now appeals to this Court on two grounds which are entirely unconnected with the defence in the Court below. The grounds of appeal are well drafted and signed by him in person but are hopeless in points of law. Having seen the appellant I have no doubt in my mind, that he is quite incapable of drafting them. By his appeal he has brought in the cross-appeal of the respondent by reason whereof there is now a judgment against him for a large sum of money which might not have happened if he had not brought this appeal. In the course of my years in the Bar and on the Bench, I have on many occasions come across defendants in person who have come in the Court advised by people unqualified to a advise in law. Litigants fall for them and pay for such advice. I have yet come across one case in which such a litigant has come to a happy ending. I hope that this is not one of those cases.
Representation: Mr. LAU Yim Chau (proprietor of Appellant's Co.) Appellant in person B. Chain (Yung, Yu, Yuen & Co.) for Respondent (1) (1968) 1 W.L.R. 1858 (2) (1924) 1 Ch. 236 (3) (1952) 1 Ch. 791 at 809 |