XCHRX BENINGTON LTD. v. DRAGOON FRANCAIS TAILOR CO.

1997 No. A3410

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R E A S O N S  F O R  D E C I S I O N

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1. The Plaintiff in this action claims against the Defendant for possession of the premises known as the Ground Floor of No.259A Portland Street, Kowloon in reliance of a notice to quit dated the 2nd September 1996 ("the 2nd NTQ") served on the Defendant pursuant to S.122 of the Landlord and Tenant (Consolidation) Ord. Cap.7.

2. The Plaintiff had previously by HCA No.A5172 of 1996 ("the 1st Action") sought the same relief in respect of the same premises. In the 1st Action the Plaintiff relied on a notice to quit dated the 11th July 1995 ("the 1st NTQ)"). The 2nd NTQ was served on the Defendant as a result of the defence filed in respect of the 1st action.

3. The Defendant now applies to strike out the Statement of Claim pursuant to O.18 r.19 of the Rules of the Supreme Court on the ground that the Statement of Claim is an abuse of the process of the Court.

4. Mr. Mok for the Defendant contended that separate proceedings on the same issue cannot be maintained as a duplication of proceedings may lead to the danger that there will be inconsistent and conflicting judgments of the Court between the same parties. He relied on Berthier Godown Ltd. v. E Wah Realty Ltd. [1986] HKC 8. He also relied on Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] AC 581 to say that save in most exceptional circumstances, a party must take all the points one wished to raise on any issue in the same proceedings.

5. Whilst I agree with the proposition of law submitted by Mr. Mok, however the situation here is slightly different. The Plaintiff started the present action as a result of the defence raised in the 1st action. The Plaintiff cannot amend the 1st action to include the present action in that the cause of action accrued after the issuance of the writ in respect of the 1st action. The situation thus is that the validity of the 2nd NTQ depends wholly on the validity of the 1st NTQ. If the 1st NTQ is valid then it will be futile to serve the 2nd NTQ. The 2nd NTQ is only valid if the 1st NTQ is invalid.

6. In Hardy v. Elphick [1974] 1 Ch.65 the Plaintiff brought an action for specific performance of an oral contract for the sale of land and relied on a letter by Defendant as memorandum in writing. Defendant denied having entered into a contract and in the alternative pleaded that the letter did not contain the whole contractual terms. Plaintiff requested for further and better particulars and the Defendant supplied the particulars. Plaintiff then started a second action pleading both the letter and the further and better particulars. It was held that the subsequent action although dealt with the same event did not relate to the same transaction. The bringing of the subsequent action without discontinuing the 1st action was not an abuse of the process of the Court.

7. In the present case although both actions deal with the same property and for the same relief the Plaintiff in each action relied on a different NTQ. The issues are different. It is similar to the situation in Hardy v. Elphick. I cannot see why the Plaintiff is not entitled to bring two separate actions.

8. In the premises the application by the Defendant to strike out is dismissed.

9. But this is not the end of the matter. The Plaintiff had taken out an O.14 summons in respect of the 2nd action. There is certainly force in Mr. Chow's submission for the Plaintiff that the defence of a grant of an option to renew for a fixed term of 3 years commencing on 1st April 1994 and expiring on 31st March 1997 should be by deed and should be registered in the Land Registry which if not registered is null and void against the Plaintiff which is a subsequent bona fide purchaser for value without notice.

10. However when I asked Mr. Chow if he was prepared to discontinue the 1st action, he declined. That being the case the 1st action is still in existence. I can only grant the relief sought in the 2nd action if the 1st action failed. Should the 1st action succeed there is no necessity to proceed with the 2nd action and the 2nd action would be rendered superfluous.

11. Although I ordered that the O.14 summons be adjourned pending my decision on whether the 2nd action should be struck out, having considered carefully the situation, for reasons aforesaid and without hearing the Defendant, in my judgment there is a defence in this action if the 1st action is pending. The O.14 summons is therefore dismissed.

12. I understand that the 1st action has been set down for trial. Since both actions have dreaded on for quite some time, to expedite the proceedings, I order that this action be tried together with the 1st action.

13. I will hear the parties on costs.