Tai Seng Bank Ltd v Wong Hoi Lai And Others

Judgment Cited authorities (1) Cited in Precedent Map Related
Judgment Date26 March 1968
Year1968
Judgement NumberCACV50/1967
CourtCourt of Appeal (Hong Kong)
CACV000050/1967 TAI SENG BANK LTD v. WONG HOI LAI AND OTHERS

CACV000050/1967

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 50 OF 1967

(On appeal from O.J. Action No.1195 of 1962)

-----------------

BETWEEN
Tai Seng Bank Limited Plaintiff
(Respondent)

AND
Wong Hoi Lai 1st Defendant
(Appellant)
Kwong Wah nee Yue Wai Ching 2nd Defendant
Lau Pak 3rd Defendant
Yiu Yun 4th Defendant

-----------------

Coram: Mills-Owens and Huggins JJ.

Date of Judgment: 26 March 1968

-----------------

JUDGMENT

-----------------

1. I agree that the appeal must be allowed. The respondent bank's claim was laid in trespass, and intentionally so as its case clearly was that the appellant, throughout, was a trespasser. The appellant succeeded in establishing his defence that he was, and throughout had been, a tenant. It was clearly impossible, in the state of the pleadings and having regard to the nature of the contest, to award the respondent a sum for arrears of rent in lieu of damages for trespass. The appellant was, therefore, a successful defendant, no matter that he might owe rent to the respondent. There was no basis for departure from the ordinary rule that costs follow the event. Even if the respondent had sought and been granted leave at the trial to amend his pleadings so as to substitute a claim for rent, it would, no doubt, have been on terms as to costs (see Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd.(1)).

2. The appeal is therefore allowed, the judgment for arrears of rent being set aside, and it is ordered that the respondent bank pay the costs of the appellant both here and in the court below. Taxation in accordance with Legal Aid Rules.

(R.H. Mills-Owens)
Appeal Judge.

Representation:

Benjamin Liu (Lau, Chan & Ko) for appellant.

Respondent not appearing.

(1) (1951) 1 All E.R. 973.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.50 OF 1967

(On Appeal from Original Jurisdiction Action No.1195 of 1962)

-----------------

BETWEEN
Tai Seng Bank Limited Plaintiff
(Respondent)

AND
Wong Hoi Lai 1st Defendant
(Appellant)
Kwong Wah nee Yue Wai Ching 2nd Defendant
Lau Pak 3rd Defendant
Yiu Yun 4th Defendant

Coram: Mills-Owens & Huggins, JJ.

Date of Judgment: 26 March 1968

-----------------

JUDGMENT

-----------------

Huggins, J. :

3. The respondents sued the appellant and three others for possession and mesne profits. It is not necessary for the purposes of this appeal to go into the facts but it will suffice to say that the learned judge dismissed the claim in trespass on the ground that the appellant was the lawful tenant of the respondents. That ruling has not been questioned on the appeal and I say no more about it. The important sentence in the judgment for our purposes is this:

"Since there can be no order for possession the claim must be treated as one for rent rather than for mesne profits".

No amendment of the pleadings was asked for or made and the judge went on to enter judgment against the appellant for arrears of rent which are not disputed Had that been all it is doubtful whether this appeal would have been brought, but in the event the judge made no order for costs in favour of the appellant and it is this which is the real complaint now made on behalf of the appellant.

4. Unfortunately there is no verbatim note of what transpired after judgment and it is not even clear from the record before us that counsel asked the learned judge for costs. We are told from the Bar that he did and that the application was opposed by Mr. Lee (counsel then appearing for the respondents) on the ground that the claim for mesne profits had been treated as a claim for rent and the appellant had been unsuccessful in defending himself against it. Again, we are told that it was upon this ground that the judge made no order for costs in favour of the appellant. It would certainly have...

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