WONG ON LAI ANNIE v. SCOTT, LEE RICHARD AND ANOTHER

LDPD 1424/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1424 OF 2015

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REASONS FOR JUDGMENT

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1.  This is an application for recovery of possession of the suit premises being Apartment B4 of 6/F, Hing Wah Mansion, No 6 Oaklands Path, Hong Kong (“the Premises”) on the ground of expiry of a tenancy agreement. The applicant also applies for an order for mesne profits from the date of expiry of tenancy, ie 1 June 2015 to the date of delivery of vacant possession of the Premises and cost.

2.  There is also an interlocutory application taken out by the respondents applying for leave to file and serve a counterclaim. 

3.  After hearing submissions, I dismiss the interlocutory application and, in addition, made the following orders:

(1) The 1^st and 2^nd respondents do deliver vacant possession of the Premises to the applicant;

(2) The 1^st and 2^nd respondents do pay the applicant arrears of rent/mesne profits at the rate of $14,500 per month from 1 June 2015 until delivery up of vacant possession;

(3) The 1^st and 2^nd respondents do pay the applicant the costs of this Application which is summarily assessed at $800;

(4) There be a stay of execution of the order for possession until 31 October 2015 on condition that the 1^st and 2^nd respondents pay to the applicant $43,500 being the arrears of rent/mesne profits from 1 June 2015 to 31 August 2015 together with the costs referred to in paragraph (3) above (but subject to the deduction of $100 for costs incurred by the applicant in LDPD 1197/2015[1]) on or before 31 August 2015.

4.  I now give my reasons for my judgment.

Background

5.  By a tenancy agreement dated 31 May 2013 (in both English and Chinese), the applicant agreed to let the Premises to the respondent for a term of 2 years commencing from 1 June 2013 to 31 May 2015 at a monthly rent of $14,500 payable in advance inclusive of rates and management fee (“the Tenancy”). There is a proviso for an option to renew the Tenancy for a further term of 1 year from 1 June 2015 to 31 May 2016 at market rent but the respondent and the applicant shall be entitled to terminate this agreement by serving not less than 2 months written notice.

6.  In a letter dated 27 April 2015 served by the applicant to the respondents, it was stated:

“3. In view of no response from you to my message dated 14 April, 2015 through WhatsApp about the renewal of rental agreement, I hereby notify you that the current Tenancy Agreement will be terminated in two months’ time and you should return the Premises to me on or before 30 June 2015.” (emphasis added)

7.  In response to the Notice of Application for recovery of possession of the Premises filed by the applicant on 3 July 2015, the 1^st respondent filed a Notice of Opposition dated 9 July 2015, referring to the option to renew and the letter dated 27 April 2015 above, stating, inter alia, that:

“3. The Respondent replied via WhatsApp, seeking clarification of whether or not a renewal was possible, or whether the Applicant was demanding a return of the premises.

4. The Applicant failed to respond clearly to the above (Par 3) query by the Respondent.

5. The Applicant began demanding an increased rental amount of HK$17,800 per month, without providing any substantiation whatsoever that this was “market rent”, nor did she show any willingness to negotiate regarding said amount, which remains in dispute.

6. It appeared that the Applicant was simultaneously demanding an increased rental amount, suggesting a renewed rental period, and also a relinquishment of the premises.

7. This (Par 6) situation understandably confused the Respondent, who did not know whether to pay the old rent, or pay the increased rent, or to vacate the premises.

……”

8.  While the hearing of the captioned application was scheduled to be heard on 11 August 2015, the 1^st respondent took out an Interlocutory Application dated 7 August 2015 seeking leave to file and serve a counterclaim which alleged delay of the applicant’s obligation under the Tenancy to repair, leading to the respondent having to eat meals in restaurants which resulted him in catching intestinal infection etc and losing his employment. The counterclaim also complaint of the applicant’s failure to deliver the Premises to the respondent in a safe and habitable condition at the beginning of the Tenancy, inter alia, resulting in the respondent suffering from an electric shock while showering and subsequent weakening of his heart etc. The respondent claimed a loss of income and other losses and expenses in an amount of HK$1,750,000 and costs.

Hearing on 11 August 2015

9.  When the hearing took place before me on 11 August 2015, I firstly referred the 1^st respondent to Huang Tongjie v. Silva Marc A, LDPD 2809/2014, a case handed down by me on 23 January 2015 and explained to him that the Lands Tribunal does not have jurisdiction to entertain any counterclaim by the respondents under section 8(8) of the Lands Tribunal Ordinance, Cap 17.   Then I dismissed the interlocutory application filed by the 1^st respondent dated 7 August 2015.

10.  Next, I drew the 1^st respondent to the attention of paragraph 3 of the letter served by the applicant dated 27 April 2015 as cited in §6 above. I considered that was a notice to quit in which the applicant’s intention was clear[2]. Once a valid notice to quit has been served, it automatically brings the tenancy to an end on the expiration of the notice. The notice to quit cannot be ‘withdrawn’ or ‘waived’ without the consent of both parties[3].

11.  Although after a valid notice to quit has been served, it does not prevent the landlord and the tenant from agreeing the grant of a new tenancy to take effect on the expiry of the notice, the parties before me conceded that no such agreement for a new tenancy had been reached. Thus the respondents could have no defence by reason of the grounds as stated in the 1^st respondent’s Notice of Opposition. The grounds as stated by the 1^st respondent in his purported counterclaim were also irrelevant for the expiry of the notice to quit or the determination of the Tenancy.

Conclusion

12.  To the extent that the respondents stayed on the Premises after the expiry of the notice to quit, they did so as trespassers and therefore the applicant is entitled to recover possession of the Premises and seek damages (mesne profits) for their illegal use and occupation.

[1] That application for recovery of possession of the Premises was commenced prematurely on 9 June 2015 and was therefore dismissed by the Tribunal on 3 July 2015 at a cost of $100 to the respondent.

[2] See Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749.

[3] See Tayleur v Wildin (1868) LR 3 Ex 303; Freeman v Evans [1922] 1 Ch 36; Lai Mai-yu v The Attorney General [1977] HKLR 382; Yue Wah Chuk Richard & Gunawan Rosa v McKeon Brendan Hugh, DCCJ 7088/2003, 7 November 2006.