Lee Man v. Ho Chiu Tseuk
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 38 OF 1972 __________________
Coram: Briggs, J. in court ______________ J U D G M E N T ______________ 1. The pleadings of the Plaintiff in this case leave much to be desired. The writ was issued on January 5th 1972. The Plaintiff was named as Lee Man, who was described as the registered owner of certain premises in Electric Road, Hong Kong. The Defendant was named Ho Chiu Tseuk and he was described as the tenant of the premises. The claim was for possession of the premises, it being alleged that the tenancy of the Defendant had expired, but that he had held over and was still in possession. 2. The true position was that Lee Man was not the registered owner, he was the agent for the registered owner, who was and is, his wife, Chung Yuk King. Nor was Ho Chiu Tseuk either a tenant or in possession at the time the writ was issued. Indeed it was part of the Plaintiff’s case that Ho Chiu Tseuk had given up his tenancy as long ago as September – October 1971. 3. Nine days after the writ was issued one Ho Ming was joined as the second Defendant at his own request. By his defence he claims to be the tenant of the premises and he is in possession. 4. I am at a loss to understand why the first Defendant was dragged into this affair at all. He appeared in person and filed a defence which was succinct and indeed, a model pleading. He is entitled to judgment with costs against the Plaintiff. 5. The statement of claim claims possession against the first Defendant and mesne profits against the first Defendant. There is no claim against the second Defendant. There was no amendment made to it after the filing of the defence of the second Defendant. This is inexcusable conduct on the part of the Plaintiff’s solicitors. I notice that the pleadings were drafted by the solicitors, a practice which, though saving in costs, is fraught with danger unless the art of pleading is properly understood. 6. The second Defendant applied to be joined as a Defendant of his own motion and he pleaded to the statement of claim as it then stood. He has not been taken by surprise. Moreover he states he is in possession. As this is a claim for possession it obviously must be directed against the person who is actually in possession. 7. I will therefore of my own motion under Order 20 rule 8 of the Rules of the Supreme Court amend the statement of Claim so that the prayer reads “Wherefore the Plaintiff claims as against the second Defendant possession of the said premises and mesne profits” etc. 8. Lee Man gave evidence for the Plaintiff. And I accept him as a truthful and careful witness. He was the agent for the owner of the premises and handled the letting of the premises on her behalf. He said that the premises were originally let to the first Defendant. He had a lease for five years at a rent of $580 per month. The lease expired on December 30th 1971. 9. The tenancy agreement contained a clause allowing the tenant to sub let the premises. In September 1971 the first Defendant told the Plaintiff that his sub-tenants, except the second Defendant, had left and that he would therefore deliver up the lease at once since he himself did not want to live there. He brought the second Defendant along to see Lee Man and introduced him as one who would be prepared to take a new lease of the premises at the expiry of the first Defendant’s lease. The second Defendant was in possession at the time as a sub-tenant of the first Defendant. 10. It was agreed that the second Defendant should remain in possession and he responsible for the rent under the old lease to the first Defendant in his place. And that a new lease would be prepared leasing the premises to the second Defendant as from January 1st 1972. 11. From that date the rent was to be $1,100 per month and the second Defendant was to pay four months rent in advance as a deposit and three further months rent as construction money. The length of the term to be granted remained undecided. The second Defendant wanted a term of five years: Lee Man was willing to grant a term of three years. 12. The second Defendant paid the rent for October, $580, but according to Lee Man he approached him a short while after and said that he, the second Defendant, was unwilling to go ahead with the transaction. 13. The second Defendant said he knew of one Chiu Yat Nam who would be willing to take a lease of the premises and he brought him along to see Lee Man. 14. Eventually the Plaintiff and Chiu Yat Nam Signed a lease for the premises as from January 1st 1972. However Chiu Yat Nam cannot take possession because the second Defendant is still there. 15. According to Mr. Chiu he agreed with the second Defendant that he could remain in the premises for a period of six months. Insofar as that period continued after January 1st the second Defendant would pay the old rent to Mr. Chiu and Mr. Chiu would pay the new rent to the Plaintiff. This was an oral arrangement. 16. The second Defendant paid the rent of $80 for the months of October, November and December. It has not been pleaded nor argued that a month tenancy of the premises was thereby created. Nor has any reference been made to any legislation which enables tenants to resist an order for possession in certain circumstances. 17. Mr. Chiu paid Lee Man a deposit on October 18th 1971 of $3,000 and a further sum of $6,200 on November 2nd 1971. This was in accordance with the terms of the tenancy agreement made between himself and Lee Man. The rent was to be $1,150 per month. And Lee Man was to receive 4 months rent as a deposit, 3 months rent as construction money and one month’s rent in advance, 8 months in all, a sum of $9,200. 18. Lee Man said that the second Defendant knew about the transaction with Mr. Chiu since he was present when agreement was reached though not when the lease was signed which was early in November 1971. The second Defendant refused to hand over the key of the premises or to move out. Hence this action, which was begun with commendable promptitude, four days after the lease to Mr. Chiu had commenced to run. 19. The evidence of Lee Man was corroborated by the evidence of Chiu Yat Nam and to a certain extent by that of the first Defendant. 20. The second Defendant gave evidence on his own behalf. His evidence is very different from that called on behalf of the Plaintiff. He said that Lee Man came to see him and asked him to take a lease of the premises. He said that they agreed that he would take over the remainder of the lease of the first Defendant and after that would be given a new lease. The terms were agreed, it was to be for a term of 5 years at a rent of $1,100 per month commencing on January 1st 1972. Four months rent was to be paid as a deposit, three months as construction money. Neither of those sums have been paid. 21. The second Defendant said that Lee Man and he had reached agreement on September 21st 1971 and Lee man told him that they must meet at a solicitor’s office to sign the written agreement. The second Defendant said that Lee Man refused to accept the rent for November. And that the receipt which was exhibited was in another’s name. In fact that receipt and the receipt for the December rent is made out in the second Defendant being expressed to be on behalf of the first Defendant who was nominally the Plaintiff’s tenant. The second Defendant admitted paying the December rent. The allegation that he did not pay the November rent was not put to Lee Man. I believe he did pay the rent for that month also. 22. The second Defendant said that Lee Man arranged for a visit to a solicitor on October 25th. However when he visited Lee Man at the curious hour of 8 p.m., the latter was not available. 23. The second Defendant did not offer any rent as from January 1st. 24. The second Defendant made much of the fact that he had spent $5,400 on redecorating the premises. He called a witness to prove this who produced a receipt for work done to that amount. Payment was by instalments. I was not at all impressed by this part of the second Defendant’s case. He was represented by counsel at the hearing and by solicitors before the trial. 25. Yet the receipt produced was not included in the list of documents disclosed to the other side. Nor, which is of greater consequence, was the matter of redecoration put to Mr. Chiu when he gave evidence. Mr. Chiu said that he uses the shop which is on the premises and which is run by the wife of the second Defendant, frequently. He would be bound to have seen redecoration going on if in fact any redecoration was done. He lives opposite to the premises and knew of the state of the premises, e.g. that at the time of the negotiations for the lease he told the court that they were three quarters empty. Only the second Defendant’s shop was there. This was not contradicted. I view this part of the case for the second Defendant with the gravest suspicion. This was not the only part of the second Defendant’s case which was not put to the witnesses called for the Plaintiff. 26. There are differences between the version of the witnesses called by the Plaintiff and the version given by the second Defendant. Where the two versions conflict I much prefer the former to the latter. I do not accept the evidence of the second Defendant. 27. It is clear what happened. The second Defendant took over the remaining portion of the lease of the first Defendant. That lease was due to expire on January 1st 1972. Before that time there were negotiations between Lee man and the second Defendant which were abortive. Then along came Mr. Chiu who took a lease, and paid the deposit and construction money. 28. There must be an order for possession against the second Defendant with mesne profits at the rate of $580 per month until the date of delivery of possession. The counterclaim of the second Defendant is dismissed. There will be a stay of execution of the order for possession until January 31st 1973 provided that the mesne profits are paid in full within the next 10 days. 29. I have already dismissed the first Defendant from the suit. He is to have his costs against the Plaintiff. The Plaintiff is to have his costs against the second Defendant.
Wesley Wong (T.S. Tong & Co.) for Plaintiff Miss Trieu (T.M. Chow & Co.) for 2nd Defendant 1st Defendant in person | |||||||||||||||||