Lam Choi Chiu And Another v Kwok Tung Sang

CourtDistrict Court (Hong Kong)
Judgment Date08 Jan 1970
Judgement NumberDCCJ42/1970
SubjectCivil Action
DCCJ000042/1970 LAM CHOI CHIU AND ANOTHER v. KWOK TUNG SANG

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

PENT INCREASES APPLICATION NO. 42 OF 1970

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BETWEEN LAM CHOI CHIU and Miss BETTY LAM Applicants
and
KWOK TUNG SANG Respondent

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Coram: M. Morley-John, D.J.

Date of Judgment: 8 JAN 1970

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JUDGMENT

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1. In this case I have been asked to decide a preliminary point of law, namely as the notice to quit in this case expired on 30th September 1970 but that after that date the landlord accepted rent, does the acceptance of this rent create a new tenancy.

2. It has been laid down that acceptance by the landlord of rent due after the expiration of a notice to quit may be evidence upon which the court will infer the creation of a new tenancy. However it was decided in the case of Clarke v. Grant(1), that such acceptance of rent has no effect on the notice to quit unless it be established that it was the intention of the parties, by paying and accepting the rent, to create a new tenancy. In each case the question is quo animo the rent is received, and what is the real intention of the parties.

3. In the case of Marcroft Wagons Ltd. v. Smith(2) Denning L.J. held that it is no longer proper for the courts to infer a tenancy at will or a weekly tenancy from the mere acceptance of rent (after expiration of the notice to quit). They should only infer a new tenancy when the facts truly warrant it. If the acceptance of rent can be explained on some other footing than that a contractual tenancy existed, as for instance, by reason of an existing or possible statutory right to remain, then a new tenancy should not be inferred. As the learned author of the Rent Acts by Megarry has stated,

"Under the provisions of those Acts whether the contractual tenancy was determined by notice to quit or by an expiration of a fixed term, the landlord had no option but to permit the tenant to remain."

Again as Denning L.J. pointed out in Marcroft Wagons v. Smith

"Seeing that the house was within the Acts, the landlords had no clear right to turn the defendant out. They could not have done so except by proving to the county court that she was not protected by the Acts."

4. I fully realize that the authorities quoted above are cases in relation to the English Rent Acts, but I am...

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