Shui Hing Co v Chan Kwai And Others

CourtDistrict Court (Hong Kong)
Judgment Date28 Jan 1946
SubjectMiscellaneous Proceedings
Judgement NumberDCMP1/1945
DCMP000001/1945 SHUI HING CO v. CHAN KWAI AND OTHERS

DCMP000001/1945

STANDING MILITARY COURT OF HONG KONG

GENERAL MILITARY COURT

TENANCY TRIBUNAL APPEAL No.1 of 1945

(Application No.19 of 1945)

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Between
Shui Hing Co. Appellants
(Applicants)

AND

Chan Kwai, Wong King Wan & others Respondents
(Opponents)

Coram: Leo D'Almada, President

Date of Judgment: 28 January 1946

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JUDGMENT

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1. In this case, the Landlord seeks to recover or certain premises under Proclamation No.15.

2. His claim is defeated by an agreement found from increases of rent demanded and paid by the tenant.

3. It is to be noted that:

(a) This agreement was found on evidence adduced on behalf of the Applicants, the Opponents' evidence making no mention of these increases;
(b) There was nothing in the evidence of the Applicants at the Tribunal hearing to suggest that they knew the First Opponent to be the tenant or even residing in the premises.

4. Applicants now allege that the First Opponent, who claims to be the tenant, is not the tenant at all, i.e. that he is not the person from whom rents were received which formed the basis for the finding of the agreement.

5. The case may be likened to one in which an agreement is raised in defence to a claim, where the burden of proof of the affirmative, i.e. of the agreement, would rest on the person pleading it, whether there was a simple joinder of issue without further pleadings, or a specific plea in reply that the defendant was not a party to the agreement.

6. The difference lies only in that the point was not raised at the Tribunal hearing, wherefore evidence was adduced on appeal to prove the Applicants' case, leave having been given for this.

7. The Opponents not being legally represented at this appeal. I was at pains to explain the position to them more than once, both for the purposes of the case itself and because of the gravity of the implications in the Applicants' further evidence. This was done after each witness's evidence, and again at the end of the Applicants' further evidence. The importance of the Opponents' adducing evidence on their own behalf was also stressed.

8. Despite this, the Opponents contented themselves with a few questions in cross-examination, some points made in argument, and ex parte statements to which I can...

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