DONALD W. SHIELDS v. MARY CHAN (otherwise known as GING TAK CHOW otherwise known as MARY CHAN PO MAN)
HTML content
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
CIVIL APPEAL NO. 30 OF 1971
(On appeal from O.J. 1259/70)
________________________
| BETWEEN | ||
| DONALD W. SHIELDS | Plaintiff (Appellant) | |
| and | ||
| MARY CHAN otherwise known as GING TAK CHOW otherwise known as MARY CHAN PO MAN | Defendant (Respondent) | |
| ________________________ | ||
Coram: Blair-Kerr, S.P.J., Briggs and Pickering, JJ.
Date: 20th March, 1972.
________________________
JUDGMENT
________________________
Pickering, J.:
I agree that the appeal should be allowed.
1. The Special Condition with which we are concerned is to the effect that the Lot shall be used for private residential purposes only. In my view the word “only” cannot reasonably be construed as prohibiting all other forms of activity than merely residing in the premises in the sense of eating, sleeping and relaxing there. The intention of the clause was clearly that when buildings were erected upon the Lot they should be of a type, and should be utilised, so as to confer upon the district the character of a residential area. Nothing that the appellant has done derogates from such a character. From time to time almost everybody does something in his private residence associated with his work and such activities are part and parcel of the process of using one’s private residence as a place in which to live. The Special Condition does not mean that on shutting the front door behind him, every form of activity associated with the tenant’s work must cease.
2. It could not, I apprehend, be argued that a judge living in premises to which such a Condition applied, would be in breach thereof by virtue of the fact that he drafted judgments at his home in the evenings and at the weekends; or that counsel, drafting pleadings, in his home or looking up the law in preparation of of his argument in Court, was in breach of the clause. Nor is the author who writes his books or articles at home, by so doing derogating from the character of the neighbourhood or flouting the plain intention of the Condition.
3. The matter is necessarily one of degree. No doubt the exercise of a trade or profession which attracted customers or clients to the premises would usually constitute a breach but what the appellant has done is no more than the judge, counsel, or the author did in the examples I have posed. The fact that the premises appear in the yellow pages of the telephone directory as the address of Oxfam and similarly in the annual report of that organization, do nothing to detract from the residential character of the neighbourhood; nor does the appellant’s visiting card. For the rest, the evidence is that applicants were not interviewed at the premises and the only complaint as to the actual mode of using the premises is that from time to time when the appellant was in Hong Kong, letters on Oxfam affairs were received and written from there. There were no external indications of anything other than one hundred per cent. residential use and the ordinary visitor to the premises would have to gain access to a most unusual part of the premises to see so much as a desk and two filing cabinets. The reaction of any ordinary visitor and of every passer-by must have been that this was a dwelling house and nothing more.
4. In my respectful view, the learned judge placed too much emphasis on the word “business” (which does not appear in either the restrictive covenant or the Special Condition with which we are concerned) and then went on to describe as “conducting what amounts to a business”, activities which could not properly be so described in the context of either the covenant or the Special Condition. All that the appellant did in the premises to merit this description of his activities was to write letters from time to time on behalf of a charitable organization by which he happened to be employed and this activity cannot, in my view, for the reasons I have endeavoured to state, be said to conflict with the true intention of the Special Condition to use the Lot for private residential purposes only.
5. For this reason I would allow the appeal. No question of specific performance of the respondent’s covenant to renew the lease for a further period of two years remains, for the reason that the appellant has already surrendered possession of the premises. The order for payment of mesne profits at $1,850 p.m. from 16th August to the date of possession, must however be amended to $1,000 p.m. which was the amount of the appellant’s contractual rent as opposed to that of the new rent being paid by another tenant for similar premises in the same building and which latter rent the judge adopted as the appropriate figure for mesne profits. The appellant is entitled to the costs of the Appeal here and in the Court below and the order for payment by the appellant of half the respondent’s costs in the Court below is set aside.
6. By way of cross-appeal Mr. Mills-Owens argued that the learned judge was wrong in law in holding that the plaintiff was justified in not paying any charges for water consumed on the premises during the original two-year tenancy; the tenancy agreement contained a covenant to pay water charges and the option for renewal required the due performance of all covenants; in the absence of compliance with the covenant to pay water charges the argument ran, there was no right to renewal; no specific amount in respect of water charges had been laid down in the tenancy agreement and in the absence of any fixed sum the obligation upon the tenant was to pay a reasonable sum; the appellant tenant relied upon conversations with Mr. Lam during which, the appellant claimed, Mr. Lam had assured him that the charge for water would be nominal and had defined this as being $25 to $30 per annum, but it was for the tenant to plead and prove an agreement between himself and the landlord or to plead and prove that Mr. Lam was the agent of the landlord; this had not been done in the pleadings and no question of estoppel had been raised. In the Defence it had been specifically pleaded that Mr. Lam was not an agent of the landlord and the point had not been adverted to in the further pleadings of the plaintiff who was now estopped from raising this allegation; it was not open to the tenant, upon receiving a demand for 23 months water charges at $80 a month, to sit back and say “Your charge is not reasonable and therefore I am not going to pay you anything”; he should have tendered what he considered a reasonable amount whereupon, if the landlord rejected that tender, the tenant would be entitled in subsequent proceedings for specific performance of the covenant to renew the tenancy, to plead tender, when the court would ascertain whether the amount tendered was reasonable or not.
7. In support of this argument Mr. Mills-Owens quoted certain cases under the Landlord and Tenant Ordinance where the fact that the permitted rent had not been ascertained had been held not to allow the tenant to sit back and pay nothing until such rent was ascertained by the court, the obligation of the tenant having been held to be to tender a reasonable amount. We do not think these cases assist counsel for the respondent for the reason that in all the cases quoted there was a contractual rent agreed between the landlord and the tenant and the argument was as to whether the tenant was justified in withholding payment of the contractual rent for the reason that it might have been in excess of the permitted rent. In the present case there was no contractual water rate specified.
8. In my view there may have been merit in Mr. Mills-Owens’ argument that the plaintiff, having failed to plead that Mr. Lam was the defendant’s agent, was estopped from adducing evidence to that effect. The plain fact is, however, that much evidence to this effect – and specifically in regard to water charges – was led by Mr. Mills-Owens himself in the court below, and it would be unrealistic to expect the learned judge to ignore this evidence once it had been admitted. Whatever may be alleged in the pleadings, if the evidence gives the lie to the pleadings – as in regard to Mr. Lam’s being an agent of the defendant it clearly did – then regard must be had to the evidence.
9. As to the suggestion that in the absence of tender there was a breach of the covenant to pay the water rate, such a payment, unlike that of rent, is not one which is related to clearly defined periods of time. The water was to come from Mr. Lam’s private well, there were no fixed dates for payment and the amount being, as the plaintiff understood it and as the judge found, a nominal amount, there was no particular urgency about making payment. Mr. Lam, for his part, made no demand for payment until some 23 months of the two-year original tenancy period had passed and then charged his niece, the defendant landlady at the rate of $80 p.m. for those twenty-three months. The defendant landlady paid this amount and sought to recover it from the plaintiff tenant, the appellant before us.
10. In this respect the learned judge said:–
“To put the defendant’s case at its highest here, she merely says that he has failed to pay her the sum of money which she has paid to her uncle on that account. She made no query as to whether the charge was reasonable and she chose to pay without handing over the bill to Mr. Shields. There was a perfectly legitimate dispute between the plaintiff and Mr. Lam concerning the quantity supplied and the proper price to be charged therefor and until agreement had been reached upon the figure or until the matter had been satisfactorily adjudicated by a competent court it could scarcely be said that the plaintiff was unjustified in resisting the charge or that his failure to pay amounted to a breach of his covenant.”
11. With that conclusion, I agree and I would dismiss the cross-appeal with costs to the appellant, that is the plaintiff in the Court below.