Chan Nan Fong v Chan Tak Wah

Court:District Court (Hong Kong)
Judgement Number:DCMP2/1970
Judgment Date:02 Mar 1971






Between CHAN NAN FONG Appellant
CHAN TAK WAH Respondent


Coram: T.L. Yang, D.J. in Court.

Date of Judgment: 2 March 1971




1. This is an appeal by the tenant from the decision of a tenancy tribunal in which the learned President gave possession to the landlord under S. 22(1)(c) of the Landlord and Tenant Ordinance.

2. The matter first came before a tenancy tribunal (TTK 115/1969) in October, 1969 when an order, purported to be a consent order, was made in favour of the landlord for possession and for arrears of rent. On the tenant's appeal to the District Court (Tenancy Tribunal Appeal No.3 of 1969) on the ground that there had been no consent, an order was made remitting the case to another tenancy tribunal for a new hearing. The hearing de novo was concluded on 26th May 1970 and a decision was given on 17th June 1970 in favour of the landlord. It is this decision that forms the subject matter of the present appeal.

3. At all material times the landlord was represented by his mother and the tenant by his daughter in matters connected with the tenancy in question. According to the learned President's decision, the landlord's case before the tenancy tribunal was that his mother from time to time visited or telephoned the tenant's daughter to demand payment of the monthly rent, but she frequently asked for indulgence because of financial difficulties and sometimes made payments by means of post-dated cheques. The tenant insisted that the landlord had waived his right to cash payment of rent in advance because of the past conduct of the landlord's mother in accepting post-dated cheques after the accumulation of several months' rent. The landlord's mother stated in evidence that she had not waived her right to cash payment of the monthly rent in advance. It was not disputed that on the 1st February, 1969, the landlord's solicitors sent a letter to the tenant demanding payment within 30 days of the arrears of six months' rent for the period from 16th July, 1968 to 15th January, 1969 (Exh. CNF - 4). It is also clear from the evidence that on or shortly before the 2nd March 1969 the landlord's mother received from the tenant's daughter a cheque post-dated to the 15th March, 1969 covering the amount of rent demanded and also the rent for two additional months (Exh. CNF - 5). This cheque was rejected by the landlord's solicitors on instructions received, and returned to the tenant together with a second letter dated 4th March 1969 (Exh. CNF - 6) asking the tenant to comply forthwith with the demand made in the earlier letter. The tenant's case was that he had discharged his liability in accordance with the first letter from the landlord's solicitors by issuing and tendering the post-dated cheque was in question. The tenant's daughter said that when the post-dated cheque was returned to her together with the solicitors' second letter, she did not know what to do and she thought the landlord had refused to accept rent from her. It was argued on behalf of the tenant that the failure to pay rent as demanded by the letter of the 1st February, 1969 was not attributable to the tenant's own default.

4. Briefly, the grounds of the tenant's appeal are:

(1) that the learned President was wrong in finding that the tenant's default in payment was not bona fide and was unreasonable,
(2) that the learned President wrongly exercised his discretion under Section 22(1)(c) of the Landlord and Tenant Ordinance in making the order for possession in the light of past practice and procedure adopted by the parties as regards the method of payment of rent,
(3) that the learned President failed to assess and/or draw the proper and reasonable inference of facts from the evidence (particularly the contents of the solicitors' letter dated 4th March, 1969 and the past practice and procedure),
(4) that the learned President erred in holding that the landlord had not waived his right to cash and puntual payment of rent, and
(5) that the landlord had by the solicitors' second letter dated 4th March, 1969 waived any breach that the tenant might have committed in failing to comply with the solicitors' first letter dated 1st February 1969.

5. The submissions of Mr. Sanguinetti, counsel for the tenant in this appeal, may be conveniently divided into two parts:

(1) the jurisdiction of the District Court to grant relief to the tenant on appeal from a tenancy tribunal; and
(2) the learned President's decision on the facts, i.e., the grounds of appeal summarized in the preceding paragraph.

6. Relying on Section 6 and Section 33(2) of the Landlord and Tenant Ordinance, and also Section 6 of the District Court (Civil Jurisdiction and Procedure) Ordinance, counsel for the tenant submits that the District Court in its appellate jurisdiction may grant the relief against forfeiture offered by Section 45(1)(b) of the District Court (Civil Jurisdiction & Procedure) Ordinance.

7. Section 33(2) of the Landlord & Tenant Ordinance provides:

"The practice and procedure on appeal shall be by motion and in all matters, save as expressly provided by this Ordinance or any rules made thereunder, shall be in accordance with the practice and procedure prescribed by the District Court (Civil Jurisdiction and Procedure) Ordinance as though such appeal were an action commenced in the court."

8. Section 45(1)(b) of the District Court Civil Jurisdiction and Procedure) Ordinance provides:

"If ................. the Court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture, the Court shall order possession of the land to be given to the lessor at the expiration of such period, not being less than four weeks from the date of the order, as the Court thinks fit, unless within that period the lessee pays into Court all the rent in arrear and the costs of the action as endorsed on the writ or as may be fixed by the Court."

9. Counsel for the tenant argues that as all arrears and mesne profits to date, and security for costs have been paid into this Court, albeit pursuant to a court order, the requirements entitling the tenant to relief against forfeiture have been satisfied. That this argument is fallacious is apparent from Section 33(7)(a) of the Landlord and Tenant Ordinance which provides, inter alia, that the District Court upon the hearing of any appeal, whether by way of case stated or otherwise, may amend or alter such decision by making any order which the tribunal would have had power to make in the matter. As relief against forfeiture is not available in the tenancy tribunal, it follows that this Court in its appellate jurisdiction may not grant such relief though as a court of first instance it has the power to do so. Indeed it can hardly be the intention of the legislature to confer on a tenant, simply on his bringing an appeal to this Court and making payment into court, a benefit not otherwise available to him in the tribunal. The situation would inevitably open the door to many frivolous appeals by those who are in no way aggrieved by the decision of a tribunal and whose sole aim is to take advantage of the relief against forfeiture.

10. It is common ground that the tenancy now under consideration is a statutory tenancy. Where a statutory tenancy has arisen, the contractual tenancy having determined either by lapse of time or act of parties, the tenant's sole right to retain possession is that given him by the Landlord and Tenant Ordinance and other similar and related ordinances. He is not therefore in a position to claim relief against forfeiture under the District Court (Civil Jurisdiction & Procedure) Ordinance (vide Megarry on The Rent Acts, 10th Edition, Volume 1, at p.247; Brewer v. Jacobs (1923) 1 K.B. 528; per Jenkins L.J. in Dellenty v. Pellow (1951) 1 All E.R. 716).

11. In the days when tenancy appeals were heard by the Supreme Court in its summary jurisdiction, the practice and procedure on appeal were regulated by Section 26(2) of the then existing Landlord and Tenant Ordinance, which apart from its reference to the Supreme Court (Summary Jurisdiction) Ordinance is in every respect similar to Section 33(2) of the present Ordinance. Section 26(2) was explained in Li Tze Cho (No.3) v. Ching Hua Company (1961) H.K.L.R. 201. while this is a decision on the appellate judge's power to review a decision of a tenancy tribunal, Reece, J. made the following observations on the meaning of the words "practice and procedure" (at pp.206-207):

"The powers of the Court relating to practice and procedure on appeal are those set out above in sub-section (2) and it is not out of place here to consider what is meant by the words 'practice and procedure'. In Poyser v. Minors (1881) 7 Q.B.D. 329, at p.333, Lush L.J. speaking of the word 'practice' as it occurred in section 32 of the County Courts Act (1856), 19 & 20 Vict. C. 108 says,

' 'Practice' in its larger sense - the sense in which it was obviously used in that Act, like 'procedure' which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from the product.
'Practice' and 'procedure' as applied to this subject, I take to be convertible terms.'

In Lever Brothers Ltd. v. Keneale & Bagnall, (1937) 2 K.B. 87, at p.93 holding that an order for committal was made in a matter of practice and procedure Slesser L.J. cited the passage of...

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