IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 1441 & 1442 & 1443 & 1444 & 1445 & 1446 OF 2006
||MODERN MARKET MANAGEMENT LIMITED
||MA WAI PIU & Others
Coram: Deputy District Judge C P Pang in Chambers
Date of Hearing: 21 September 2006
Date of Delivery of Judgment: 21 September 2006
J U D G M E N T
1. This is a hearing of six summonses dated 27 April 2006 for a summary judgment under Order 14 against each of the defendants in the respective actions. In these six actions, the plaintiff as the licensor of Chung Fu Shopping Centre, Ground Floor, Tin Shui Wai, New Territories, sues the respective defendants who have been licensees of the stalls therein. The ground floor of the Shopping Centre is a market (“the market”). The six actions are broadly similar in their circumstances and hence they are heard together for convenience sake. The defendants in DCCJ1441-1446 of 2006 are named as D1, D2, D3, D4, D5 and D6 respectively in this judgment.
2. Since 16 February 2000, D1, D2, D4 and D6 started to rent their respective stalls in the market. On 21 February 2000, the plaintiff started to take up the tenancy of the market and became the licensor of the stall licensees of the market. On 16 February 2005, D3 and D5 started to rent their respective stalls in the market. On 17 March 2005, all the defendants except D1 entered into licence agreements with the plaintiff from 16 February 2005 to 15 February 2006. On 6 September 2005, D1 entered into a licence agreement with the plaintiff from 16 August 2005 to 15 February 2006.
3. On 15 February 2006, all the licence agreements between the plaintiff and the defendants expired. It is the plaintiff’s case that it had issued notices to quit dated 8 August 2005 to all the defendants, notifying them that they had to deliver vacant possession of their stalls on 15 February 2006. This is not disputed by the defendants for the purpose of this hearing.
4. On or about 31 December 2005, D2 signed an application form for renewal of the licence agreement (“the application form”). She then refused to sign a formal licence agreement and refused to pay the new rent. It is her case that she signed the application form without being given sufficient time for due consideration. She was not even given a copy of the application form which she had signed.
5. In or about January 2006, the other defendants were notified by the plaintiff of the amount of the new rate, which was higher than the original rent under the licence agreements. There were then disagreements between the plaintiff and the defendants over the amount of new rent for the new licence agreements. No new licence agreements have been entered for D1, D3, D4, D5 and D6.
6. From 15 to 17 February 2006, the defendants wrote to the landlord of the plaintiff, namely, The Link Management Limited (“the landlord”) and asked for assistance. The defendants also requested the landlord to intervene in the matters. On 21 February 2006, the landlord arranged a meeting including: Mr Wong Yee-chow of the plaintiff; a number of stall licensees including the defendants; representative of the landlord; Legislative Council member, Mr Albert Chan, at Chan’s Tin Shui Wai office.
7. It is the defendants’ case, but denied by the plaintiff, that the plaintiff and the defendants had reached the new agreement in this negotiation meeting.
8. It is the defendants’ case that the terms of the new agreement, inter alia, were that the defendants shall continue to rent their respective stalls and pay the old rent. A re-assessment of the rent shall be carried out by the plaintiff to determine the new rate. The plaintiff agreed not to take any further action, including claiming vacant possession, before the determination of the new rent. The next negotiation meeting was scheduled on 22 March 2006. The defendants are still paying the old rent to the plaintiff.
9. The plaintiff subsequently issued six writs of summons on 22 March 2006, claiming against the defendants for, inter alia, vacant possession of the stalls, the licence fees and/or mesne profits at a new rate. On 3 April 2006, the defendants acknowledged the service of the writ and stated their intention to defend. On 27 April 2006, the plaintiff issued Order 14 summonses against the defendants.
The Plaintiff’s Case
10. It is the plaintiff’s case that the licence agreements between the plaintiff, as the licensor on the one part, and the respective defendants, as the licensees on the other part, in respect of the respective stalls in the market had expired. The plaintiff alleges that the parties could not reach any new agreement on the terms and conditions of the licence of the stalls and therefore the defendants should deliver vacant possession of the stalls to the plaintiff. The plaintiff denies that any new agreement was reached on the negotiation meeting on 21 March 2006. If any agreement was reached it was only an agreement to negotiate and therefore not a binding contract.
The Defendants’ Case
11. It is the defendants’ case that there was a new agreement reached between the plaintiff and the defendants in the meeting on 21 February 2006. The meeting was held at Legislative Council member, Mr Albert Chan’s office for 4½ hours with the attendance of: Mr Wong Yee-chow of the plaintiff; the defendants; Mr So Luk-ming (a representative from the Association of the Licensors); Mr Cheung Kin-fat (the general manager of the landlord); and a number of other licensees and volunteers. The new agreement was evidenced in minutes prepared by one of the volunteers, and the affirmations of the defendants and some independent witnesses, including Legislative Council member Mr Chan.
12. It was agreed, inter alia, that:
(1) the defendants shall continue to rent their respective stalls and pay the old rent;
(2) any agreement prior to the new agreement in respect of the new rate shall be superseded (and this would be applicable to the case of D2);
(3) the new rate shall be determined by the parties in the subsequent meetings. The plaintiff shall carry out a re-assessment of the rent. The new rent shall have retrospective effect from 16 February 2006;
(4) the plaintiff shall carry out the re-assessment of the rate in accordance with four principles, namely: the operation costs; business environment; geographical location; and nature of the business, as suggested by Mr So Luk-ming;
(5) the new agreement shall be reduced into writing and a new draft...