WONG HENRY v. HONG KONG BAY PROPERTIES LTD.

HCA 4028/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4028 OF 2000

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J U D G M E N T

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INTRODUCTION

1. The Plaintiff is a male indigenous villager of Wong Sze U Tong ("the Tong") in Tai Mei Tuk Village in the New Territories. He is entitled under the Government's "Small House Policy" to build a village house commonly known as "Ting house" in the New Territories as his residence. The Defendant is a property developer in Ting houses. In about 1992, the Defendant was negotiating for the purchase of 170,000 square feet of land, including the Remaining Portion of Lot No. 769 ("Lot 769 RP") from the Tong in Tai Mei Tuk for its Ting house development projects. As the Plaintiff did not have any land for building his Ting house, he was not keen in the sale of the land by the Tong. In order to smooth out the purchase, the Defendant agreed to carve out a building lot of 3,200 square feet from the 170,000 square feet to be purchased from the Tong for the Plaintiff. This lot came to be identified as Lot No. 769A ("Lot 769A") and it represented the Plaintiff's beneficial interest in the Tong land to be sold. Lot 769A would be transferred to the Plaintiff, while the other members of the Tong, excepting the Plaintiff, would share in the proceeds of the sale. As part of the deal, the Defendant would assist in the Plaintiff's application for building his Ting house, while the Plaintiff undertook to consent to the sale of the Tong land and cancel all previous objections lodged with the District Lands Office. The above arrangements are evidenced in two letters dated 21 January 1992 and 29 May 1993 issued by the Defendant. On 1 August 1994, after the 170,000 square feet of land had been sold to the Defendant, Lot 769A was transferred to the Plaintiff at a stated consideration of $159,248. The assignment was duly registered with an assignment plan in the Land Registry.

2. Subsequent to that the Defendant's architect, Fotton Ela Architects Ltd ("Fotton"), sought to re-delineate Lot 769 RP as the ancestral grave of the Tong was located within the lot. The boundary of the entire lot was moved south by about 70 feet so as to take the ancestral grave out of the lot. The re-delineation was for the mutual benefit of the Tong in terms of "fung shui" and of the Defendant in terms of usable area. So far as it affected the Plaintiff, his lot was relocated by about 70 feet to the south. It was also changed from a rectangular lot to an almost square lot. He lost an insignificant protruding plot but the overall size of his lot remained the same or about the same. As a result of the re-delineation, a trapezoidal plot ("the Premises") of about 630 square feet was created next to his lot within the re-delineated Lot 769 RP.

3. The Plaintiff was alerted of the re-delineation while he was in Germany. He complained to Fotton and the Consumer Council in writing himself and through his German lawyers. He also offered to buy the Premises at fair market price via his letters dated 1 September 1994 and 28 November 1994 and expressed interest to purchase some other lots owned by the Defendant including Lot 769 RP, within which his lot is located. On 30 November 1994, Mr Lee of Fotton replied that he had forwarded his suggestion to buy the Premises to the Defendant and had requested the Defendant's immediate attention. Lee enclosed a draft plan showing the re-delineated boundary of Lot 769A and sought the Plaintiff's agreement to the re-delineation. A month later, on 23 December 1994, Lee informed the Plaintiff that the Defendant agreed in principle to sell him the Premises at the current market price. Lee also advised him that the land in the area was acquired by the Defendant at about $200 per square foot and asked if the Plaintiff considered the price acceptable. However, instead of proceeding to the sale and purchase, on 18 January 1995, the Plaintiff signed the Deed of Amendment agreeing to the re-delineation and entered into a tenancy agreement in respect of the Premises with the Defendant (the "Tenancy Agreement") for a term of five years, upon the expiration of which the Plaintiff has the "優先權", the agreed translation of which for the purposes of these proceedings is "prior right" to purchase the Premises for $50,000. The above factual background is not in dispute.

4. What is in dispute is what happened between 9 and 18 January 1995. According to the Plaintiff, pursuant to his agreement with Lee, on 9 January 1995, he delivered a cashier order in the sum of $40,000 as deposit for the intended sale and purchase of the Premises. Then the Defendant's chairman, Mr Chan Keung, suddenly contacted the Plaintiff and told him that a straightforward sale of the Premises might cause discontent among other influential members of the Tong and suggested that the Premises should initially be let to the Plaintiff for a fixed terms of years, after which the Plaintiff shall have the right to purchase it at an agreed price. After further negotiations, Chan and the Plaintiff orally agreed on 18 January 1995 that the lease would be for a term of five years at a monthly rental of $1,890 after which the Plaintiff would be entitled to purchase the Premises at the agreed price of $50,000. In return, the Plaintiff would execute the proposed Deed of Amendment. The Defendant's account is that despite repeated requests, the Defendant refused to sell the Premises to the Plaintiff as the Defendant's directors thought the Premises might be of use to the development project. Then the Plaintiff earnestly requested to rent the Premises. As the Defendant did not have any immediate plan for the use of the Premises then, the Defendant agreed to lease the Premises for a term of five years and to give the Plaintiff the "優先權" ("prior right") to purchase the Premises if the Defendant wishes to sell.

5. There are only two issues involved in this action: the construction issue and the rectification issue. The construction issue is an issue of law; i.e. whether on a true construction of the Tenancy Agreement, the Plaintiff was given a right which is not subject to any other right to acquire the Premises from the Defendant or, as the Defendant contends, the right was a right of pre-emption which may only be exercised if the Defendant decides to alienate the Premises. The question raised by the rectification issue is whether on the facts the Tenancy Agreement reflected the true agreement between the parties. If the construction issue is decided in favour of the Plaintiff, the Plaintiff succeeds and there is no need to consider the rectification issue.

THE CONSTRUCTION ISSUE

The Tenancy Agreement

6. The Tenancy Agreement is a standard form Chinese document obtainable from book stores. The clause providing for the "優先權" ("prior right") was inserted by the solicitor or his clerk in Chinese. The use of such a home made type of document may be explained by the urgency of the situation as the agreement was reached quite late and the Plaintiff was leaving for Germany that night. There was no discussion or explanation about the meaning of this "優先權" ("prior right") in the solicitors' office. Clause 11 of the Tenancy Agreement provides as follows:

" 租約屆滿時，乙方有優先權以港幣伍萬元正(或以當時通用幣值)向甲方購入上述約630平方呎的地段，甲方不得異議，但乙方必須遵守此租約條文，否則作放棄此優先權。"

The following is a non-certified translation accompanying the copy of the Tenancy Agreement registered in the Land Registry.

" When the term of the lease agreement expires, [the Plaintiff] has the prior right, to use HK$50,000 (or to use the then prevalent currency value) to buy in from [the Defendant] the [Premises], [the Defendant] shall not deviate therefrom, but [the Plaintiff] must comply with the terms of this lease agreement, or otherwise be regarded as foregoing this prior right."

Principles of interpretation

7. There are a few principles of interpretation which should be borne in mind in interpreting the Tenancy Agreement. The common and universal principle is that a document ought to receive that construction which its language will admit, and which will best effectuate the intention of the parties, to be collected from the whole of the document and that greater regard is to be had to the clear intention of the parties than to any particular words which they may have used in the expression of their intent: see Ford v Beech (1848) 11 QB 852 at 866. The intention of the parties is to be collected from the whole of the document. Secondly, interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract: per Lord Hoffman in Investor's Compensation Scheme Ltd v West Bromwich Building Society, [1998] 1 WLR 897 at pp 912. The approach in ascertaining this intention is an objective one. Thirdly, the law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent: Investor's Compensation Scheme Ltd v West Bromwich Building Society. Fourthly, the meaning which a document would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean: see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] A.C. 749. Fifthly, words should be given their "natural and ordinary meaning", but if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had: Investor's Compensation Scheme Ltd v West Bromwich Building Society.

The true interpretation

8. For the purpose of considering the interpretation of the Tenancy Agreement, I ignore the background negotiation leading to the formation of the Tenancy Agreement. The Tenancy Agreement is a standard form Chinese document. It sets out the usual terms in a tenancy agreement. Clause 11 is a non standard term inserted by the parties. It stands on its own and bears little relation with the standard terms. No help could be derived from the standard terms as to the meaning of優先權" ("prior right") used in Clause 11. The meaning of this term would have to be ascertained from within the Clause itself.

9. The crucial words to be construed are "優先權" ("prior right") in Clause 11. The Plaintiff's case is that he acquired an option to purchase the Premises upon satisfactory completion of the term of the tenancy while the Defendant's contention is that the words "優先權" ("prior right") mean a right of pre-emption or priority. Mr Lam, for the Defendant, referred to the English-Chinese Glossary of Legal Terms, 3rd ed. in which the terms, "option", "right of pre-emption" and "priority" are respectively translated as "認購權", "優先購買權利" and "優先權". He argues that the term "優先權" ("prior right") means priority, i.e. a right of priority in preference to other indigenous villagers in Tai Mei Tuk Village or to other people intending to buy the Premises, should the Defendant wished to sell. Alternatively, he submits it is a preferential right to purchase, "優先購買權利", i.e. a right of pre-emption and it could not mean "認購權" ("option").

10. The term "優先權" ("prior right") is contained in a Chinese agreement and written in Chinese. It has to be read and understood according to the ordinary and natural meaning which the Chinese language conveys to a reasonable person with full knowledge of the background. The English translation relied upon by the Defendant is not a certified translation but is the translation which was required to be accompanied with the Tenancy Agreement for registration with the Land Registry. The term "優先購買權利" ("right of pre-emption") or "優先權" ("prior right") may admit of no equivalent English translation. Hence, reference to the English-Chinese Glossary of Legal Terms may not be helpful. In addition, the glossary does not have the force of law. More importantly, the translations referred to in the Glossary are translations of the terms as used in the specific statutes stated in the Glossary. They are not of universal application and may not be relevant to the term as used in the Tenancy Agreement now in issue.

11. Next, Mr Lam argues that the words "優先" ("prior") mean "優先", i.e. "preference" and "優先權" ("prior right") must only mean a right in preference to others. He refers to a letter dated 20 November 1994 written by the Plaintiff in which the Plaintiff suggested that he should have a "優先權" ("prior right") to buy some other lots of land in Tai Mei Tuk. The Plaintiff agreed under cross examination that by those similar words, he meant a right in preference to other intending purchasers. Hence, Mr Lam submits that when the Plaintiff used an identical term within two months in communication with the same party, it was difficult to believe that he could have given that term a new meaning. With respect, I disagree. Though the parties were the same, the subject matters were different. The term was used in two different documents regarding two different subject matters. I have already stated the principle that the intention of the parties must be collected from the document, i.e. the Tenancy Agreement, and the meaning of the document to be ascertained is that meaning which that document would convey to the reasonable man. The meaning of a document is not the same as the meaning of its words. Thus, it would be a serious distortion of the meaning of the Tenancy Agreement to try to implant into it the meaning of an identical term from another document offering to buy a different subject matter and in a transaction of an entirely different nature.

12. Mr Lam seeks to reinforce his argument on the ground that the Tenancy Agreement was drafted by solicitors acting for both parties and it is presumed that the draftsman would not waste words by qualifying the word "權" ("right") with the words "優先" ("prior") without meaning anything. Hence, he argues that the words "優先權" ("prior right") must be given the same meaning as "a right of priority" or "a right of pre-emption" as in the Glossary, otherwise the words "優先" ("prior") would be redundant and meaningless. On the other hand, Mr Chow argues that the words "優先" ("prior") are unqualified in scope and could mean "in preference to other purchasers" or "in preference to the Defendant landlord". Mr Chow urges me to find that the words "優先" ("prior") mean "in preference to the landlord" because Clause 11 provides that the Plaintiff has the right to "buy in from the Defendant". I certainly cannot agree with that view because with or without the words "優先" ("prior"), the Plaintiff could only buy the Premises from the Defendant landlord as no one else has the power to sell.

13. Mr Lam also referred to authorities on the interpretation of the terms "option" and "right of pre-emption". In my view, the words "優先" ("prior"), "優先權" ("prior right"), "優先購買權利" ("right of pre-emption") are not legal terms of art. In particular, I am not aware of any decision on the meaning this term "優先權" ("prior right") in Chinese or in English. By itself, it defines neither the quality nor the quantity of the interest it purports to deal with. The meaning depends upon the context. Hence, reference to decided cases on what appear to be similar English terms, such as "option", "right of pre-emption" or "priority" may not be of direct relevance and may only serve as reference. The term "優先權" ("prior right") in Chinese remains to be interpreted in accordance with the ordinary rule of interpretation.

14. Mr Chow submits that under this clause, the Plaintiff has to satisfy two conditions precedent. The tenancy must have run its full course of five years and during which the Plaintiff must have complied with all its terms. He submits that on a reading of the clause, these are the only conditions precedent and there is no room for any other conditions precedent to be implied into the clause and any suggestion that this "優先權" ("prior right") is subject to the Defendant's absolute right to refuse to sell is excluded by the language of Clause 11. He further argues that the existence of the Defendant's absolute right to refuse to sell would render the express condition precedent that the Plaintiff must comply with the Tenancy Agreement redundant, if the Defendant could refuse to sell in any event. I consider this is a possible view which the language of Clause 11 would present to a reasonable person.

15. However, a more compelling conclusion is to be drawn from the words "[the Defendant] shall not deviate therefrom" following the operative words of Clause 11. If the clause provides that at the end of the tenancy the tenant may exercise the "優先權" ("prior right") by paying $50,000 and the landlord shall not deviate therefrom, it must mean that the "優先權" ("prior right") exercisable by the tenant is not subject to any conditions precedent other than those provided for under Clause 11 or some other provisions of the Tenancy Agreement. The time for exercise of the "優先權" ("prior right") has been fixed, the price has been determined, the parties and the subject of matter are clearly identified. Reading Clause 11 as a whole, all these point to the conclusion that by giving the "優先權" ("prior right") to the Plaintiff, the defendant landlord has clearly divested himself of his discretion to refuse to sell unless the tenant fails to meet the conditions precedent. In my view, the "優先權" ("prior right") given to the Plaintiff under Clause 11 is an absolute right exercisable by the Plaintiff at his own option by paying $50,000. It is an outright and simple option.

16. Furthermore, if the landlord has the absolute right to refuse to sell, the "優先權" ("prior right") which Clause 11 purports to give to the tenant is illusory. The landlord would then be able to refuse to sell and frustrate the expectation of the tenant who has completed the five year tenancy and duly complied with all its terms. A repugnant example would be for the landlord to refuse to sell to the tenant at $50,000 but offer to sell to him or any buyer at a higher price shortly after the term expires. A more repugnant example would be for the landlord to sell the Premises to another buyer at the same price after exercising his so called "absolute right to refuse to sell" to the tenant. These could not have been what were in the contemplation of the parties. No reasonable person having full knowledge of the background circumstances, in particular the very high rental paid for the five years during which no useful purpose could be put to the Premises, would read into the words "優先權" ("prior right") an additional condition that it is subject to the Defendant's right to refuse to sell.

17. In my view, to give to the words "優先" ("prior"), and "優先權" ("prior right") the meanings which Mr Lam suggests, i.e. "a preference" and "a right of pre-emption" is to give to these words meanings which are wholly inconsistent with the very compelling objective conclusion as to the intention of the parties which could be drawn from the other words used in the Tenancy Agreement, such as "the Defendant shall not deviate therefrom". Obviously, the words "優先" ("prior") have no meaning or no specific meaning, and if they have any meaning at all, it is just to emphasise the serious, binding, enforceable or the absolute nature of the right to buy (絶對權). To adopt the Defendant's interpretation would require writing into Clause 11 a further condition that the Defendant has the discretion or the right to refuse to sell, which would render the "優先權" ("prior right") illusory and would defeat the obvious intention of the parties as could be collected from the Tenancy Agreement. Any argument relied upon by the Defendant is just semantic and leads to a conclusion that flouts business common sense. Bearing in mind that the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean, I find that on a true construction, Clause 11 gives to the Plaintiff an absolute right to purchase the Premises upon the expiration of the term of tenancy at the price of $50,000. The only condition precedent is that he should comply with all the terms of the Tenancy Agreement during the five year term of the tenancy.

The architect's authority to bind the Defendant and consideration

18. I shall now turn to two minor issues raised by the Defence, which in my view are quite irrelevant for the determination of the construction issue. These are whether the architect has authority to bind the Defendant in any agreement to sell the Premises and whether the "優先權" ("prior right") or the option to purchase, as I have now found it to be, is supported by consideration.

19. The Defendant suggested that its architect was acting without authority when negotiating with the Plaintiff for the sale of the Premises. The Defendant's case is that it never agreed to or authorised Lee to agree to sell the Premises and that after having repeatedly refused the Plaintiff's offer to buy, the parties agreed to lease the Premises. The Defendant is now being sued upon the option under the Tenancy Agreement entered into by the Defendant's chairman and not an agreement for sale and purchase made between the Plaintiff and Lee as an agent of the Defendant. That agreement for sale and purchase has not materialised and is not in issue. Hence whether Lee had authority to enter into that agreement is irrelevant. The importance of the negotiation between the Plaintiff and Lee fades into insignificance except as part of the background. However, for the purpose of determining the construction issue, I have excluded such background from the factual matrix, though it would, of course, be relevant in considering the rectification issue.

20. Into the second day of trial, the Defendant raised a new issue of lack of valuable consideration. It could hardly be argued that the Tenancy Agreement was not supported by consideration as there is no dispute that rent was paid. Thus, this new allegation could only relate to the option to purchase the Premises. I think any argument of lack of consideration is wholly artificial. Clause 11 is part and parcel of the entire Tenancy Agreement. If the Tenancy Agreement is supported by a valuable consideration, there must be consideration for the option as part of that agreement. In addition, there was the execution of the Deed of Amendment which according to the Plaintiff, he would not have executed but for the Defendant agreeing to sell the Premises by way of the tenancy and option. I therefore dismiss this defence as unmeritorious.

21. This would have been sufficient to dispose of the action. I shall nevertheless briefly deal with the rectification issue in which the evidence in support of the Plaintiff's case for rectification is overwhelming.

THE RECTIFICATION ISSUE

The background

22. The Plaintiff says that the true intention of the parties was to effect a sale of the Premises by way of the lease and option after five years so as to avoid complication with the villagers and that had it not been for the Defendant's promise to sell him the Premises at the end of the tenancy, he would not have signed the Deed of Amendment and the Tenancy Agreement and paid such a huge amount of rent for a piece of land which he could put to no use in those five years. The existence or otherwise of this oral promise during the course of the negotiation between the Plaintiff and Chan is a matter of the Plaintiff's words against those of the Defendant's chairman and directors, Chan, Wong, and Bar.

23. The Plaintiff's evidence is simple, straightforward and supported by contemporaneous documents. When the Plaintiff became alerted of the re-delineation, he raised complaints to the Defendant's architect and to the Consumer Council. Regardless whether he has any merit in his complaint, he has the right to because the Defendant sought to alter the boundary of his lot without his prior consent. The re-delineation was of great importance to the Defendant as it was beneficial to its development project. It may be a matter of indifference to the Plaintiff as he would be given 3,200 square feet just the same. But he saw that as an opportunity to bargain for more land and he offered to pay a fair market price for the land to be purchased. All these are reflected in the exchange of correspondence between the Plaintiff and Lee and are beyond dispute. From Lee's letter of 23 December 1994, it is clear that the agreement for the sale of the Premises was the inducement or the consideration for the Plaintiff to agree to the re-delineation and to execute the Deed of Amendment. The Plaintiff's account is logical and makes good sense.

24. On the other hand, the three defence witnesses impressed me with their evasiveness and self proclaimed lack of knowledge about the negotiation for sale and purchase between their architect and the Plaintiff as reflected in the contemporaneous correspondence. They claimed to have little knowledge about the correspondence as they were handled by their secretary. They seemed to suggest that the negotiation for the sale of the Premises was a frolic of their architect in order to have the re-delineation agreed to by the Plaintiff and approved by the Lands Department.

25. It is highly unlikely that a professional architect would act without instruction in the way suggested by the Defendant in order to bring about the re-delineation. The re-delineation was beneficial to the Defendant. If it was necessary to sell 630 square feet of land to bring about that benefit, it was a matter for the Defendant. There is no reason why a professional architect should go all out of his way to practice a fraud on the Plaintiff to bring about a benefit to the Defendant. The Defendant's suggestion defies common sense.

26. Quite apart from that, the Defendant's account is illogical and inherently incredible. There was no reason why upon the Defendant's refusal to sell, the Plaintiff became so desperate as to request for a lease of the Premises at that time. He had no immediate use to put to the Premises then. The Ting house was not yet built. No house was ever built. The Premises could not be used as a garden which was the undoubted purpose for which the Plaintiff wished to acquire the Premises. It remained useless for the entire term of the tenancy except for growing some fruit trees. There is no reason why the Plaintiff would pay $1,890 per month for the purpose of growing some fruit trees over a plot of land of 630 square feet. In five years, the total rental paid was $113,400. The tenancy did not make business sense, without the house having been built. According to the Plaintiff, the agreed purchase price for the Premises was $126,000 at $200 per square foot. The total rental and the $50,000 to be paid upon the exercise of the option totals $163,400. This was $37,000 more than the purchase price but represents a fair amount of interest for the extended payment of the purchase price over five years. I accept the Plaintiff's evidence and reject the evidence of the three defence witnesses as inherently incredible.

The true intention of the parties

27. Having so assessed the credibility of the witnesses, I find that the Defendant, through Lee, agreed to sell the Premises to the Plaintiff as a condition for the Plaintiff agreeing to the re-delineation and signing the Deed of Amendment. In order to avoid possible complication which may be raised by the villagers, Chan proposed a lease with the "優先權" ("prior right") to give effect to that agreement. Whether Lee has authority to bind the Defendant is beside the point once I accept that at a later stage Chan took over the negotiation with the Plaintiff and they together worked out the tenancy agreement. For reasons as earlier, the Defendant's suggestion that Lee had no authority from the Defendant to negotiate the sale and purchase of the Premises is incredible.

28. As I have found above, there was no reason why the Plaintiff would have leased the Premises at such a high rental for five years during which no useful purpose could be put to the Premises. The Tenancy Agreement would not have been entered into and at such a high rent, if it were not for the fact that an equity over the Premises was being built up during the term of the tenancy. The transaction is similar to payment by instalment. What was underlying this Tenancy Agreement was the eventual sale and purchase of the Premises.

29. Accordingly, I find that the sale and purchase of the Premises was the consideration for the Plaintiff signing the Deed of Amendment and was also the underlying reason for the parties entering into the Tenancy Agreement. By that Tenancy Agreement, the parties intended that the Premises shall be sold to the Plaintiff at the end of the term provided he complied with all the terms of the Tenancy Agreement. The "優先權" ("prior right") under Clause 11 was never intended to be a right of pre-emption nor was it ever intended that it would be subject to the Defendant's right to refuse to sell. I find that the true agreement was that the Plaintiff shall have an absolute right to purchase the Premises upon satisfactory completion of the five year term. The "優先權" ("prior right") is an option and a right which may be used to compel the Defendant to sell him the Premises. If on the true construction of the Tenancy Agreement, Clause 11 could not reflect the true agreement, that clause shall be rectified to give effect to the true intention between the parties. But on my finding of the construction issue, rectification is not necessary.

CONCLUSION

30. Having come to the conclusion that on the true construction of the Tenancy Agreement, the Plaintiff was given an option to purchase the Premises on expiration of the tenancy under Clause 11 of the agreement, I grant a declaration to that effect.

31. The Premises are adjoining the Plaintiff's Lot 769A. It would be used as a garden when the Plaintiff's Ting house is built. It would therefore enhance the value and enjoyment of the Plaintiff's lot. The Plaintiff has performed his part of the agreement, completed the five year term and complied with all the terms of the Tenancy Agreement. There is no suggestion that any third party has acquired any interest over the Premises nor is there any argument that specific performance should not be granted. The Plaintiff has built an equity over the Premises during the five years by complying with the terms of the tenancy and by paying what in effect were instalments. In the circumstances, no court of equity would allow his expectation to be frustrated even upon payment of compensation. This is a case where damages are not adequate. Accordingly, I order as against the Defendant specific performance of Clause 11 of the Tenancy Agreement.

32. There is no evidence that the Plaintiff has suffered any loss. I therefore make no order as to damages in addition to specific performance.

33. The Plaintiff shall have costs of the action against the Defendant, to be taxed if not agreed.