Tang Hoi Wo v Well Luck (H.k.) Ltd

Court:High Court (Hong Kong)
Judgement Number:HCA1568/2004
Judgment Date:01 Apr 2005
HCA001567/2004 TANG HOI WO v. WINTOP MANAGEMENT LTD

HCA1567/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1567 OF 2004

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BETWEEN

  Tang Hoi Wo (鄧海和) Plaintiff
  and  
  Wintop Management Ltd. (宏達管理有限公司) Defendant

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HCA1568/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1568 OF 2004

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

BETWEEN

  Tang Hoi Wo (鄧海和) Plaintiff
  and  
  Well Luck (H.K.) Ltd. (景富(香港)有限公司) Defendant

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Before : Deputy High Court Judge L. Chan in Chambers

Dates of Hearing : 29 March 2005

Date of Delivery of Judgment : 1 April 2005

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J U D G M E N T

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Background

1. The plaintiff is the tenant of two lots of land mainly RP of Lord number 100 and RP of Lot number 104 in DT 115 in Yuen Long (“the lots”). The plaintiff has let the Lots from the owner Tang Kwong Yu Tong (“the Tong”) by a tenancy dated the 1 June 2004. The tenancy was for a term of three years commencing on 1 January 2004 and ending the 31 December 2006 at the monthly rental of $20,500. There was also an option to renew for the plaintiff at the same rent for two years commencing 1 January 2007.

2. The plaintiff issued the writs of summons endorsed with statements of claim on 6 July 2004 claiming recovery of the lots from the defendants on the ground of trespass. The plaintiff has issued a summons in each action on 17 Jan 2005 seeking an injunction to restrain the defendant from entering the lots or alternatively an order that they should deliver up vacant possession of the lots to the plaintiff. On 18 Jan. 2005, the plaintiff issued two more summonses in the actions seeking an injunction to restrain the defendants from operating car parking business in the lots or using the lots for purposes other than cultivation of paddy. On 3 March 2005, the plaintiff issued a third summons in each action for summary judgment against the plaintiff.

The pleadings and the affirmations

3. The statements of claim referred to the plaintiff’s tenancy dated 1 June 2004 as granted by the Tong and alleged that the plaintiff had trespassed into the two lots on or about 1 Jan 2004. It thus seeks an order for possession of the lots and damages to be assessed.

4. The defendants duly filed their defences on 27 July 2004. The defences are short. The defendants admitted that they had been in possession of the lots as from 1 January 2004 onwards. They also pleaded that they had entered into a lawful tenancy agreement with the Tong in or about December 2003 in respect of the lots for the period from 1 January 2004 to 31 December 2005 at a total monthly rental of $20,500.

5. The plaintiff on 16 August 2004 requested for further and better particulars of the alleged tenancy. The particulars requested included the date of the tenancy and whether the tenancy was made orally or in writing. Instead of providing the particulars sought, the defendants’ solicitors by a letter of 9 September 2004 enclosed to the plaintiff’s solicitors draft amended defences and requested for consent to the amendments.

6. The draft amended defences abandoned the previous plea of a tenancy directly from the Tong. Instead, they plead that the plaintiff had been granted an oral tenancy by the Tong over the lots in or about mid-December 2003 and the written tenancy dated 1 June 2004 as the written evidence of the oral tenancy. The drafts further plead that there was an oral sub-tenancy over the lots and made between the plaintiff and one Lee Hong Yin for the defendants. The sub-tenancy as alleged was to last from 1 Jan 2004 to 31 December 2005 at the total monthly rental of $30,000 with $20,500 to be paid directly by the defendants to the Tong and the balance of $9,500 to be paid by the defendants to the plaintiff. The balance of $9,500 per month was however payable only upon the conclusion of the written tenancy agreements between the Tong and the plaintiff and between the plaintiff and the defendants. It also alleges that there was an option to renew for three years at the same monthly rental unless there was default of the defendant in paying the rental or any part thereof during the first term.

7. The plaintiff did not consent to the proposed amendment and no application has been made by the defendants for leave to amend defences in terms of the draft amendments. However, as referred to below, the line of defence in the draft amendments has been confirmed on affirmation.

8. In support of the summonses for injunctions, the plaintiff filed two affirmations on 17 January 2005 with one made by he himself and the other made by one Tang Lik Yuen, the treasurer of the Tong. In his affirmation, the plaintiff referred to his tenancy as pleaded in the statement of claim. He said that the defendants had on about 1 January 2004, without the consent from him or from the Tong, wrongfully entered upon the lots and operated a car park thereon. The defendants thus trespassed into the lots. The plaintiff then referred to the inconsistencies between the two lines of defence. He further said that the car park operations on the lots would attract enforcement action which might result in forfeiture of leases by the government for breach of the covenant of user. The simple picture painted by him was that the defendants had on about 1 January 2004 suddenly took occupation of the lots and operated car parks thereon. He did not refer to any background of the case which might have been relevant.

9. The plaintiff also produced the company search records of the defendants showing that the defendants are just $2.00 companies and thus cannot be expected to pay...

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