HO-HSUCH-MIN GISELE WAI YING AND ANOTHER v. HO CHING FAI

HCA1805/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1805 OF 2007

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D E C I S I O N

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Introduction

1. The plaintiffs are the registered owners of G/F, No.73 Sai Yee Street, Kowloon (“the Premises”).

2. By a tenancy agreement dated 27 August 2004, the plaintiffs rented the Premises to the defendant for three years between 23 August 2004 and 22 August 2007 at the monthly rent of HK$54,000.  Under Clause 10 of the tenancy agreement, if the defendant wished to renew the tenancy for a further term of two years, he should give a written notice to the plaintiffs and pay a further deposit of HK$16,200 not less than six months before the expiration of the tenancy.

3. The plaintiffs claimed that the defendant had failed to give the requisite notice and pay the further deposit under Clause 10.  The tenancy therefore expired on 22 August 2007 upon effluxion of time.

4. When the defendant refused to deliver vacant possession of the Premises, the plaintiff commenced the present action.  On 12 June 2008, they successfully obtained summary judgment against the defendant for, among other things, vacant possession and mesne profit/damages until delivery of vacant possession to be assessed.  The defendant now appeals.

No arguable defence

5. The burden rests squarely on the defendant to raise an arguable defence to the plaintiffs’ claim.

6. He first alleged that he had given the notice of renewal under Clause 10 in December 2006.  However, even if this allegation, which is disputed by the plaintiffs, is accepted for present purposes to be believable, the defendant had failed at the same time to pay the further deposit as required.  He only paid it on 13 August 2007.  And there is no evidence before the court to suggest that the plaintiffs had agreed to accept late payment of the further deposit.

7. The defendant next alleged that he called one of the 1^st plaintiff after sending the notice of renewal, telling her that he would defer the payment of the further deposit.  To that, she said “得啦, 得啦”.  The defendant contended that the plaintiffs’ answer might amount to an estoppel. 

8. I disagree.  A representation may amount to an estoppel only if it is clear and unequivocal.  Even assuming that the defendant’s allegation, which is again disputed by the plaintiffs, is believable, the 1^st plaintiff’s response does not amount to any clear and unequivocal representation that she accepted late payment of the further deposit.

9. Thus, even putting the defendant’s case at its highest, there was no valid exercise of the renewal option under Clause 10.  That being the case, the tenancy must have expired on 22 August 2007 upon effluxion of time.

Conclusion

10. In my view, the defendant has no defence to the plaintiffs’ claim at all.  His appeal must fail and I dismiss it accordingly.

11. The parties agree that costs should follow the event.  They further agree that if costs are to be awarded against the defendant, they should be taxed on an indemnity basis pursuant to Clauses 5(a) and (f) of the tenancy agreement.  I therefore order that the defendant do pay the plaintiffs’ costs of this appeal, to be taxed on an indemnity basis if not agreed.