XCHRX LEE CHUI FOON v. PACK-MATE (H.K.) CO. LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

( ACTION No. 588/1995 )

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J U D G M E N T

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Yam, J.:

1. The plaintiff was the landlord and the defendant the tenant of a domestic premises for a tenancy of two years from 1 July 1992 to 30 June 1994.

2. By a Form CR101 Notice dated 6 June 1994, the plaintiff issued a Notice of Termination of tenancy of the suit premises pursuant to s.119(1) of the Landlord and Tenant (Consolidation) Ordinance, Cap.7 and notified the defendant that the tenancy of the said premises would be terminated on 31 December 1994. The plaintiff further informed the defendant that she would oppose an application for the grant of a new tenancy on the ground that "the premises are reasonably required by the landlord for occupation as a residence for her lawful daughter over 18 years of age".

3. The said CR101 form was signed by Messrs K.C. Ho & Fong, solicitors for the landlord, and the address of the landlord was given c/o the address of the solicitors for the landlord.

4. By a letter dated 18 July 1994, Messrs Henry C.K. Tung & Co., on behalf of the defendant, sent a Notice of Opposition, CR102, dated 18 July 1994 to the landlord c/o the address of the solicitors for the landlord. The defendant informed the plaintiff that it would not give up possession of the said premises and it intended to apply for the grant of a new tenancy.

5. The tenancy was terminated on 31 December 1994 but no application for renewal of tenancy had been made by the tenant pursuant to s.117(1) of the Ordinance.

6. The landlord in this action claimed termination of the tenancy and therefore possession of the suit premises. The defendant raised several points in defence.

Validity of the CR101

7. The defendant contended that the form CR101 was defective in that -

(1) the address of the landlord was not given and instead it was only an address of a firm of solicitors;

(2) no sufficient particulars of the landlord's ground of opposition has been stated in the form.

8. Generally, it was provided by s.37 of the Interpretation and General Clauses Ordinance, Cap.1 that if any deviations from prescribed form not affecting the substance of such form, they shall not invalidate the form itself. In Morrow v. Nadeem (1986)1 WLR 1381, the Court of Appeal in England decided on the issue whether the name of the landlord given in a notice was defective. The Court of Appeal in England allowed the appeal and decided that the form of notice prescribed by the English Act of 1954 required the name of the landlord to be stated; that the notices to the tenant did not comply with the statutory requirements because the name of the landlord was mis-stated with the result that the tenant was misled and that accordingly, the notices were invalid. Nicholls L.J. cited the case of Barclays Bank Limited v. Ascott [1961] 1 WLR 717 with approval. Barry, J. said at p.722 :

"A number of very useful authorities have been cited to me, but as I see it, none of them are directly in point, and I do not think any useful purpose would be served if I referred to them in detail. It appears to me that the real gist of these decisions was summarised by Hodson, L.J. in Bolton's (House Furnishers) Ltd. v. Oppenheim [1959] 1 WLR 913. As I understand Hodson L.J.'s judgment, the question which the court really has to consider is whether the statement or notice given by the landlord has given the proper information to the tenant which will enable the tenant to deal in a proper way with the situation, whatever it may be, referred to in the statement of notice. It is clear from the authorities which have been cited to me that the construction of this notice should be a liberal one, and provided that the notice gives the real substance of the information required, then the mere omission of certain details or the failure to embody in the notice the full provisions of the section of the Act referred to will not in fact invalidate the notice."

Earlier on Nicholls L.J. considered the necessity of the information in such a form. He said at p.1386D that :

"When the notice is so read, it is apparent that what is contemplated is that by the form the tenant will be given the information sufficient to enable him, if he so wishes, to avail himself of his statutory rights by serving the requisite counter-notice on the landlord within two months and thereafter applying to the court for a new tenancy between two and four months after service of the section 25 notice."

Further, Slade L.J. considered that the tenant need to have proper information for the purpose of properly instituting any proceedings which the tenant might wish to institute for applying for a new tenancy.

9. Here the name of the landlord was clearly stated in the form and an address was given. Neither the Ordinance nor the notes printed on the back of Form CR101 specifies what type of address is required. For my part, I consider that the address of a firm of solicitors acting for the landlord is a sufficient address for the purpose of the defendant's communication with the landlord.

10. Rule 7(1) of the Lands Tribunal Ordinance, Cap.17 provided that service of a document may be effected if the person is acting by a solicitor, by delivering it to or leaving it for the solicitor or sending it by ordinary post addressed to the solicitor at the address for service or at his place of business. The defendant's solicitors actually adopted this practice and served Form CR102 on the plaintiff 's solicitors. Thus, the tenant, in my view, has already been given sufficient information to enable it, if it so wishes to avail itself of its statutory rights.

11. Section 119E of Cap.7 sets out the grounds of opposition which may be stated in Form CR101. It does not require the landlord to give further particulars. The printed notes in Form CR101 repeat s.119E and does not require the landlord to give any further particulars. In my view, the landlord herein has already given sufficient particulars of her ground of opposition should the tenant apply for the grant of a new tenancy. In that event, i.e. the tenant's application for a new tenancy, the landlord will have to state the particulars of her ground of opposition before the Lands Tribunal and if they are not sufficient, it is open for the tenant to ask for further and better particulars. But the hard fact in this case, for reason which is not known to this Court, is that the tenant has not applied for such a renewal in the Lands Tribunal. In the end, I consider that the Form CR101 served herein is a valid notice.

Waiver/Estoppel

12. The concept of waiver and estoppel had been applied to cases on validity of notice to quit or notice of termination of tenancy both in England and in Hong Kong : see Wallis v. Semark (1951) 2 TLR 222, Re Swanson's Agreement (1946) 62 TLR 719 and Fung Kwai Ching v. Yick Kit Bing [1974] DCLR 10, at 12. In Wallis and Re Swanson's Agreement, it was decided to the effect that if a tenant represented to the landlord that he accepted the invalid notice as valid, and intended it to be acted on and the landlord in fact acted on it, then the tenant is estopped from challenging the validity thereof.

13. Under Part IV of Cap.7, after a counter-notice in Form CR102 is served by a tenant, the landlord may either -

(1) serve a notice in Form CR105 to prompt the tenant to start proceedings within two months; or

(2) wait until the expiration of the notice and start her own recovery proceedings.

In this case, the plaintiff chose the second alternative.

14. The defendant's solicitors served the counter-notice by Form CR102 without disputing the validity of CR101 and the same was served on the address of the solicitors for the plaintiff. The defendant did not there and then dispute the validity of CR101. It did not require the plaintiff to state the address of the landlord nor further and better particulars of the plaintiff 's anticipated ground of opposition. The plaintiff therefore, relying on such representation, waited till the expiration of CR101 on 31 December 1994 and instituted the present proceedings. Should the tenant raised objection to the validity of the notice, the landlord could have served a replacement notice to supersede the defective notice and would not lose the waiting time. Accordingly, I consider that the defendant, by serving the CR102 on the plaintiff 's solicitors is estopped from denying that the notice was invalid or otherwise has waived the same.

Conclusion

15. In my view the defendant cannot show any triable issue in this application for summary judgment and accordingly, the appeal from the Master is dismissed with costs to the plaintiff.

(D. Yam)

Judge of the High Court