Mass Ocean International Ltd. v. Wynyard Development Ltd.

DCCJ000223A/2001

DCCJ223/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 223 OF 2001

 

BETWEEN
	Mass Ocean International Limited	Plaintiff
	AND
	Wynyard Development Limited	Defendant

Coram: H H Judge Lok in Chambers

Date of Judgment: 27 July 2001

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J U D G M E N T

______________________

 

1. Judgment for possession of land has been granted by His Honour Judge Lam on 25 April 2001, and the Defendant now makes an application for stay of execution of that judgment.

2. The complication with the present application is that after the said judgment, the Government announced on or about 21 May 2001 that it is going to resume the land in question by latest before May 2002. It is common ground that whoever occupies the land at the date of the resumption may be able to get compensation from the Government. In such circumstances, the court is very concerned that the parties are not trying to make use of this application to achieve some ulterior goal, for example, to get compensation for the occupation of the land from the Government. The court, therefore, has to approach this application with some caution, and the court is only entitled to take into account factors which are legitimately put before the court.

3. The Defendant together with its sub-tenants run a container depot in the land in question. In order to relocate such business, the Defendant and the sub-tenants have to obtain a permit under section 16 of the Town Planning Ordinance to use another piece of, perhaps, agricultural land to store containers. In such circumstances, the Defendant claims that it would need 5 to 6 months for the whole relocation process. This piece of evidence is not challenged.

4. On the other hand, if the Plaintiff proceeds to issue writ of possession of the land, it is common ground that it would take about 3 to 3 1/2 months before the bailiff is able to execute the writ by gaining possession of the land. In such circumstances, the Plaintiff may only be able to obtain the land in the end of November.

5. In my judgment, a general stay of execution should not be granted in the present case. If the occupants do not vacate the land after the stay period, it would cause further delay to the Plaintiff if it has to enforce the judgment by that time, and this certainly provides room for abuse. On the other hand, sufficient time should be given to the Defendant to relocate. In any event, it would take time for the Plaintiff to enforce the judgment by issuing the writ of possession.

6. Having carefully considered and balanced the interests of both parties, I refuse a general stay of execution. The Plaintiff is at liberty to enforce the judgment by writ of possession, but I also order that the final execution of the writ by entering into possession of the land not to take place earlier than 1 December 2001, which is 6 months after the time I consider that the Defendant should have made arrangement for the relocation.

7. I also add that the parties be at liberty to apply.

8. Both the solicitor for the Plaintiff and counsel for the Defendant do not object to the form of the order I made just now, but they are quite concerned about the time. In my judgment, the order I made will certainly protect the interests of both parties and reduce the risk of abuse. This is the reason I give in relation to the present application.

(Submissions made)

	H H Judge Lok
	District Court Judge

Representation:

Present: Mr Siu Choi-fat, of Messrs Chui & Lau, for the Plaintiff

Mr K M Chong, instructed by Messrs K W Lai, for the Defendant

DCCJ000223/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 223 OF 2001

 

BETWEEN
	MASS OCEAN INTERNATIONAL LIMITED	Plaintiff
	AND
	WYNYARD DEVELOPMENT LIMITED	Defendant

 

Coram: H.H. Judge Lam in Chambers

Date of Judgment: 25 April 2001

 

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REASONS FOR DECISION

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1. This is an application for summary judgment by the Plaintiff as registered owner of the Remaining Portion of Section D of Lot No.372 in Demarcation District No.99 ["the property"]. The Plaintiff acquired the property by an assignment dated 14th September 1999. It asked for possession of the property and mesne profit.

2. The Defendant occupied the property as tenant of the predecessor-in-title of the Plaintiff, Man Shin Kang Tong. There is no dispute that by a tenancy agreement dated 1st June 1995, the Defendant was granted a lease of the property for a term of 5 years from 1st December 1995. The lease expired on 30th November 2000. The Defendant said that the lease has been renewed. In the Defence and Counterclaim filed on 21st February 2001, it was pleaded that the lease was renewed pursuant to Clause 2 of the tenancy agreement and the right of renewal was exercised in or about January 2000. The renewal was, according to a letter dated 23rd February 2001 from Messrs.Eric Lai, Jason Cheung & Co., the Defendant's solicitors to Messrs. Chui & Lau, Plaintiff's solicitors, done orally between Man Cheuk Wai, a manager of Man Shin Kang Tong and Man Whi Chung of the Defendant.

3. Such contention is at variance with what is stated in a letter dated 20th October 2000 from the Defendant's solicitors stating that the right of renewal was exercised in July 2000. Although that letter was headed as "without prejudice", the Defendant did not raise any objection to that being put in evidence. Further, the Defendant's counsel advanced submissions to account for the discrepancy between that letter and the pleaded case of the defence. In these circumstances, I consider that the Defendant has waived any privilege, if any, in respect of the letter. The explanation offered by the Defendant's counsel is that the letter of 20th October 2000 was written as a result of the mistake of Man Whi Chung when he gave instructions for the letter to be written. He was the deponent of the affirmation of 30th March 2001 filed on behalf of the Defendant and he did not offer such explanation in the affirmation.

4. The crucial issue is how did the renewal by Man Cheuk Wai bind the Plaintiff. In the letter dated 20th October 2000, Man Cheuk Wai was said to have renewed the tenancy as manager of thelandlord. Hence, apparently, the Defendant was contending that there was a renewal by Man Shin Kang Tong. This allegation is repeated in Paragraph 3 of the Defence filed herein although as mentioned above, the date of the renewal was changed. The difficulty with that proposition is that by the time of the alleged renewal, whether in January or July 2000, the property had been sold to the Plaintiff. The Tong simply could not grant any renewal in its own right. Further, it is agreed that the option to renew (if it can be so characterized though I have reservations about the same as I construe Clause 2 of the tenancy agreement as a right of first refusal if the landlord was to lease out the property again) was not registered under the Land Registration Ordinance Cap.128. Hence, it is absolutely null and void to all intents and purposes as against the Plaintiff whose assignment was registered on 8th October 1999 (see Markfaith Investment Ltd. v. Chiap Hua Flashlights [1990] 2 HKLR 84 and Wellmake Investments Ltd. v. Chan Yiu Tong [1996] 2 HKLR 44).

5. To overcome that difficulty, counsel for the Defendant (Mr.Lee) argued that Man Cheuk Wai was acting as agent for the Plaintiff when he renewed the tenancy. He agreed that the Defence did not plead such a case and it has to be amended in due course. He however submitted that the issue is triable and summary judgment should not be granted. To support his case, he argued that the Plaintiff had appointed Man Cheuk Wai to be its agent for collection of rent. Reliance was placed on a letter dated 29th September 2000 from the Plaintiff's solicitors to the Defendant. That was a letter demanding for arrears of rent from 14th September 1999 to date of the letter. On the face of it, that letter showed that the Plaintiff had not appointed any person to collect rent up to that point in time and a demand was made directly to the Defendant. Mr.Lee submitted that as the Plaintiff was a commercial entity purchasing a piece of land, it was likely that it would ask someone to collect rent on its behalf. He also pointed to the letter in reply dated 7th October 2000 by which the Defendant informed the Plaintiff that the rent had been paid to Man Shin Kang Tong. Since the Plaintiff did not press further for rent, he invited the court to draw an inference that the Plaintiff did appoint Mr.Man Cheuk Wai to collect rent. He further said that as rent collector, the Plaintiff had at least cloaked Mr. Man Cheuk Wai with apparent authority to renew the tenancy on behalf of the Plaintiff.

6. I bear in mind that this is an Order 14 application and I should not conduct a mini-trial. As accepted by Mr.Lee, the sole issue is whether there is a triable issue of

Mr.Man Cheuk Wai acting as agent for the Plaintiff when the lease was allegedly renewed. I hold that there is no credible evidence to lead to such inference. It is important to bear in mind that the defence case is that up to September 2000, the Defendant was not aware of the assignment of the property to the Plaintiff. Hence, they expressed surprise in the letter of 7th October 2000 to the demand by the Plaintiff for arrears of rent. This lack of knowledge is confirmed in Paragraph 3 of the Affirmation of Man Whi Chung of 30th March 2001. Obviously, the Defendant could only have dealt with Man Cheuk Wai as manager of the Tong whom the Defendant believed to be owner of the property. The receipts produced by the Defendant for rent paid to Man Cheuk Wai also clearly showed that the rent was collected by Man Cheuk Wai as agent for the Tong. There is absolutely no evidence of any representation by Man Cheuk Wai or the Plaintiff that he was acting as agent for the Plaintiff. In the light of the clear evidence that Man Cheuk Wai was acting as agent for the Tong, I see no basis for the court to draw the inference as invited by Mr.Lee. There is simply no credible case of Man Cheuk Wai acting as agent for the Plaintiff in granting the purported renewal.

7. For these reasons, I hold that there is no triable defence in this case. I would grant summary judgment to the Plaintiff for possession of the property. Since the mesne profit has been paid up to end of April, I only need to order mesne profit from 1st May 2001 up to date of possession. I shall hear parties on question of costs.

 

 

 

Representation:

Appearances: Mr Siu Chui Fat of M/s Chui & Lau for the Plaintiff

Mr Josiah H K Lee instructed by M/s Eric Lai, Jason Cheung & Co. for the Defendant