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Chan Nan Fong v Chan Tak Wah

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date07 April 1970
Year1970
Judgement NumberDCMP3/1969
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
DCMP000003/1969 CHAN NAN FONG v. CHAN TAK WAH

DCMP000003/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

TENANCY TRIBUNAL APPEAL NO. 3 OF 1969

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BETWEEN
CHAN NAN FONG Appellant

AND
CHAN TAK WAH Respondent

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Coram: Morley-John, D.J.

Date of Judgment: 7 April 1970

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JUDGMENT

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1. This is an appeal against an order of a tenancy tribunal made on 10th October, 1969 whereby the appellant, hereinafter referred to as the "tenant", consented to deliver up vacant possession within thirty days to the respondent, hereinafter referred to as the "landlord", premises known as No.4, Norfolk Road, ground floor, Kowloon, and also to pay to the landlord the sum of $3,410, being eleven months arrears of rent for the period from the 16th day of July, 1968 to the 15th day of June, 1969, at the rate of $310 per month together with mesne profits at the same rate as from 16th day of June 1969 up to the date of delivery of vacant possession of the said premises. The claim was made in accordance with the provisions of section 22(1)(c) of the Landlord and Tenant Ordinance, on the ground that the tenant had failed to pay the rent due within thirty days, after demand. The tenant filed an answer the substance of which was that the last demand had been for arrears of rent amounting to the sum of $1,860 being six months' rent, upon receipt of which the tenant had handed to the landlord a post-dated cheque for the sum of $2,480, which amounted to the payment of 8 months' rent, but that the cheque had been returned although the tenant had occupied the premises since July 1951 and on previous occasions had made payment of rent by way of post-dated cheques.

2. The grounds on which the appeal is besed are twofold, a third ground having been abandoned. Firstly that the learned President misdirected himself or alternatively erred when he recorded judgment in favour of the respondent in the following terms :-"By consent. Vacant possession within 30 days. Arrears of rent and mesne profits as claimed", in that the tenant did not by his daughter Miss Susan Chan, who appeared before the learned President on behalf of the tenant, consent to judgment for vacant possession or for mesne profits. Secondly that the learned President failed to consider those paragraphs of the answer (grounds of opposition) which raised the matters I have already referred to, the tender of the post-dated cheque, and previous payment by post-dated cheque, which matters were a cause sufficient to entitle the tenant to the continued protection within the meaning of section 22(1)(c) of the Landlord and Tenant Ordinance.

3. In accordance with rule 48 of the Tenancy Tribunal Rules the tenant applied for a signed copy of the notes of the proceedings before the Tenancy Tribunal and in his letter of application it was also stated that the tenant intended to challenge the accuracy of the notes of the proceedings on the grounds that Miss Susan Chan did not give any consent to the order made and he therefore enquired whether the learned President of the Tribunal intended to amend his notes of the proceedings or not. As a result of this application on signed copies of the notes were provided, but no reply was given to the query as to whether the learned President intended to amend his notes of proceedings, the notes were provided unamended, and both parties before me have assumed that the learned President declined to amend his notes.

4. The notes of the proceedings were very short and read as follows :

" Susan Chan - I produce a letter from my father authorising me to represent him. My father has given me $1,000 cash. I admit owing rent as from 16th July 1968 on behalf of my father. I consent to an order for recovery of possession with stay of execution for 30 days.

Wat - I agree and apply for an order for possession and arrears of rent and mesne profits.

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By consent. Vacant possession within 30 days. Arrears of rent and mesne profits as claimed."

From the notes of the proceedings it would appear quite unequivocably that Miss Chan consented to an order for recovery being made, and although I agree as was said in the Tenancy Tribunal Appeal No.1 of 1960. Lam Tung Hung and Pun Wong Yiu Yuk(1) that it can be only in a very rare case that this Court will go behind the notes of proceedings singed by the President, such is the substance of the grounds of appeal that it appeared to me to be...

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