CHAN WAI SHEUNG AND ANOTHER v. SHNET AUDIO VISUAL TECHNOLOGY LTD

CHAN WAI SHEUNG AND ANOTHER v. SHNET AUDIO VISUAL TECHNOLOGY LTD

The plaintiffs' Statement of Claim omitted essential averments about the contractual one-month notice and, because implication under Order 18 Rule 7(4) cannot be used to contradict or supply material facts inconsistent with the pleaded case, the pleading is defective; the defendant has raised an arguable defence of an unpleaded verbal compromise that requires investigation and a trial, so summary judgment must be refused and unconditional leave to defend granted; costs for the application specified at HK$1,200.

Citation
CHAN WAI SHEUNG AND ANOTHER v. SHNET AUDIO VISUAL TECHNOLOGY LTD
Parties
Plaintiff: 1st Named Plaintiff; Plaintiff: 2nd Named Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 May 2007
Case Number
DCCJ610/2007
Procedural Posture
Tenancy Dispute / Application for Summary Judgment (order 14)
Outcome
Summary judgment refused; unconditional leave to defend granted; Order Nisi made for costs in favour of Defendant
Legal Topics
Summary Judgment, Possession, Rent Arrears, Mesne Profits, Part V Tenancy, Notice to Terminate, Oral Compromise/settlement
Source Language
EN
Landlord and Tenant Contract Civil Procedure Summary Judgment Possession Rent Arrears Mesne Profits Part V Tenancy +2 more

Case Brief

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Parties

1st Named Plaintiff

Plaintiff

2nd Named Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Tenancy Dispute / Application for Summary Judgment (order 14)

Legal Issues

  1. 1 Whether the subject tenancy was validly terminated and whether a contractual one-month notice was required and given
  2. 2 Whether missing averments in the Statement of Claim can be supplied by implication under Order 18 Rule 7(4)
  3. 3 Whether the Defendant has an arguable defence based on an alleged verbal compromise relating to water leakage compensation and waiver of rent

Ratio Decidendi

The plaintiffs' Statement of Claim omitted essential averments about the contractual one-month notice and, because implication under Order 18 Rule 7(4) cannot be used to contradict or supply material facts inconsistent with the pleaded case, the pleading is defective; the defendant has raised an arguable defence of an unpleaded verbal compromise that requires investigation and a trial, so summary judgment must be refused and unconditional leave to defend granted; costs for the application specified at HK$1,200.

Court Disposition

Summary judgment refused; unconditional leave to defend granted; Order Nisi made for costs in favour of Defendant

Orders

  • Unconditional leave for the Defendant to defend
  • Order Nisi that the Plaintiffs pay the Defendant's costs of and incidental to this application; costs specified at HK$1,200 pursuant to Order 62 Rule 9(4)(b) of the Rules of District Court; to become absolute in 14 days unless varied