Chau Po Yue v. Lui Wai Hong

DCCJ194/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 194 OF 2015

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REASONS FOR DECISION
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1.By an inter-partes summons (“Summons”) dated 23 January 2105, the plaintiff applied under O29 r1, Rules of the District Court and the inherent jurisdiction, for an order to restrain the defendant from remaining in occupation of a premises in Kowloon. At the hearing of the Summons, the defendant was not represented and did not appear. Having been satisfied that the defendant was served with the Summons, I granted the following orders:

(1) An injunction until judgment or further order of the Court that the Defendant do within 42 days from the date of the service of the order deliver vacant possession of the premises known as Ground Floor, No.1 Kiu Yam Street, Kowloon, Hong Kong (“the Premises”) to the Plaintiff;

(2) An injunction until judgment or further order of the Court that the Defendant be restrained, whether acting by himself, his servants, agents or otherwise howsoever, from:-

(a) trespassing on the Premises;

(b) being, remaining or entering upon the Premises; and/or

(c) doing anything which may interfere with the Plaintiff’s quiet enjoyment of the Premises;

(3) There shall be a Return Date on 13 March 2015 at 2:30 p.m.;

(4) The Defendant (or anyone notified of this Order) be at liberty to apply to the court at any time to vary or discharge this Order upon giving 48 hours’ notice to the Plaintiff’s solicitors of their intention to do so;

(5) Costs of and occasioned by this Application be to the Plaintiff’s costs in the cause;

(6) Liberty to apply; and

(7) A Chinese translation of the Order shall be accompanied with the Order.  

2.These are my reasons for the decision.

Background facts

3.The facts, as taken from the statement of claim and the affidavit in support of the Summons, can be briefly stated as follows.

4.The plaintiff is the registered owner of the Premises.  By a tenancy agreement dated 20 January 2011 (“2011 Agreement”), the plaintiff agreed to let the Premises to the defendant for a period of two years at a monthly rent of $8,500.

5.On 31 December 2012, after the 2011 Agreement had expired, the parties had not entered into another tenancy agreement though the plaintiff had requested the defendant to do so. Notwithstanding an absence of a written agreement, the defendant continued occupying the Premises and also paying an increased monthly rent of $11,000 until May 2013.

6.The defendant’s subsequent failure to pay rent led to the plaintiff’s bringing of a proceeding in the Lands Tribunal (“Tribunal”) for the recovery of vacant possession of the Premises and for mense profits, which resulted in the Tribunal ordering the defendant to deliver vacant possession of the Premises and to pay arrears of rent.

7.On 27 December 2013, the Tribunal, upon the defendant’s undertaking to pay arrears of rent, stayed its earlier order for vacant possession as well as a writ of possession of the Premises. 

8.In March 2014, the plaintiff’s attempts in having the defendant enter into a new tenancy agreement were not fruitful. The defendant at around that time also failed to pay rent.

9.This led to the plaintiff’s making of another application in the Tribunal for vacant possession and for the arrears of rent in April 2014.

10.On 30 June 2014, the plaintiff through her solicitors, expressly stating it to be without prejudicing her claim in the Tribunal application to recover vacant possession, gave the defendant a notice to quit (“June Notice”) the Premises on 1 January 2015.

11.The defendant had continued to occupy the Premises and deposited in the Tribunal, as shown in the deposit slips exhibited by the plaintiff,  all the arrears of rent and the monthly rent payments for the period from March to December 2014.

12.On 25 November 2014, the plaintiff’s solicitors sent another notice to the defendant requiring him to deliver possession on 1 January 2014 on the ground that the “tenancy will expire on 31 December 2014”.

13.Despite another written reminder from the plaintiff’s solicitors on 9 January 2015 requiring the defendant to deliver possession by 12 January 2015, the defendant has continued occupying the Premises.

14.The plaintiff issued the writ on 15 January 2015. The cause of action relied on by the plaintiff is trespass on account of the defendant’s wrongful occupation of the Premises after 1 January 2015. Among the various reliefs claimed are for vacant possession, permanent injunction, damages and mense profits to be assessed.

The ground of the application

15.Counsel for the plaintiff, Mr Sunny Chan, submitted that the defendant has no arguable defence as repeated and clear written notices to quit had been given to the defendant.  The continued occupation of the Premises, counsel submitted, is a continuing trespass and violation of the plaintiff’s property rights, which should not be allowed to continue, relying on International Trademart Co Ltd v Club Regency Ltd (HCA 1243/2008, 25 July 2008) and Home Expo (Hong Kong) Ltd v International Trademart Co Ltd (HCA 1183/2014, 11 July 2014).

Discussion

16.I find, on the evidence, that after the 2011 Agreement had expired, and there was, as pleaded in §3 of the statement of claim, a monthly periodic tenancy. A month’s notice would have been sufficient to terminate such a tenancy.

17.In the absence of any evidence filed by the defendant who was also absent at the hearing, there was no arguable case that the defendant should remain in occupation. I am satisfied, on the plaintiff’s evidence, that the defendant has become as at 1 January 2015 a trespasser when he continued occupying the Premises after the period specified in June Notice had expired. 

18.As the defendant’s occupation after 1 January 2015 is wrongful, the plaintiff is prima facie entitled to an injunction in accordance with the law as succinctly summarized by Saunders J in International Trademart, supra. at §§55 and 56:

“ 55. The law is clear. A landowner whose title is not in issue is entitled to an injunction to restrain a trespasser on his land, whether or not the trespasser harms him: Patel v Smith [1987] 1 WLR 853 at 858F. It is no argument to say that no harm has been done to the landowner because trespass, being an invasion of a property right, itself constitutes the harm: Woolerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 41.

56. Once the plaintiff can show a violation of his legal rights he is entitled, prima facie, to an injunction: Jaggard v Sawyer [1995] 1 WLR 269, and the burden is on the tenant to establish a right to continue in possession: Portland Managements Ltd v Harte & Ors [1977] 1 QB 306. ”

19.The questions of the balance of convenience, status quo and damages being an adequate remedy, similar to the facts of the cases counsel cited, also did not arise here. I was at first blush inclined to grant an order.

20.What had caused me the anxiety was the fact that it was noted that the defendant had filed an acknowledgment of service of the writ indicating his intention to contest the proceedings, and that the time limit for the serving of the defence was only to fall due on 26 February 2015. If the operative date of the injunction were to take effect before the time limited for the serving of the defence, and given the fact that the effect of an injunction order would be in effect disposing of the action, it would pre-empt the defendant from contesting, at least, the claims for vacant possession and injunction.

21.Mr Chan put forward two proposals to circumvent the potential unfairness.  First, counsel stated that the plaintiff was content with having the operative date of the injunction to take place on a date after a reasonable period of the deadline date for the serving of the defence has lapsed. Secondly, Mr Chan also invited me to fix a return date (though it is not strictly necessary) before the operative date of the injunction but only after the time limit for the serving of the defence had expired.  By granting an order along these lines, it was submitted, little prejudice would be caused to the defendant. In addition to having the right to apply to discharge the injunction on reasonable notice (as provided in the body of the order), Mr Chan further submitted, the defendant would also have sufficient time to serve his defence before the injunction took effect should he wish to make such an application and defend the action.     

22.After having reflected on Mr Chan’s submission, I was persuaded by his arguments and found the proposals attractive for the following reasons.

23.First, I consider that it would be unjust to the plaintiff to defer the hearing of the Summons and the granting of an injunction order since a prima facie case of entitlement has been established. The defendant having been served with the Summons has, for whatever reason, neither filed any evidence in response or in opposition nor appeared to oppose the application. 

24.Secondly, by deferring the operative date of the injunction order until after the deadline date for the serving of the defence would sufficiently address the apparent unfairness discussed in §20 above.

25.Thirdly, by adopting such a course and by having another hearing before the compliance date after a reasonable time for the serving of defence not only would not cause any injustice to the defendant, it would, in my judgment, have the added advantage of saving time and costs.  On the return date, the court should be in a position to examine the defendant’s defence. If the court is satisfied that the defendant has a good defence or that there is a serious issue to be tried, the interlocutory injunction may be discharged. Conversely, the injunction may be continued with the effect of disposing of the entire proceedings should the defendant fail to show merits.

26.I hesitated initially in accepting counsel’s suggestion of fixing a return date since this was not an ex parte application. After having reflected on the matter,  I was, in the end, satisfied that it would be just to take this unusual course by fixing a return date as it would allow the defendant one more chance to show merits (if any) of his defence as he was  absent at the hearing.

27.Given the concession made by the plaintiff in agreeing to accept an injunction with a deferred compliance date, I believe that justice could be attained by the exercise of my discretion with the greatest flexibility. The delayed compliance date (so to speak) proposed by counsel as appearing in the order above would in the circumstances of this case aptly do that.

28.I have instructed my clerk to inform the defendant to make an arrangement with my clerk for a court interpreter if he requires this Decision to be interpreted. 

Mr Sunny Chan, instructed by Eddie Lee & Co, for the plaintiff

The defendant was not represented and did not appear