CHAN YUK MUI v. 葉穎麟

bjbj g: 9 November 2007 Date of Delivery of Decision: 9 November 2007

D E C I S I O N The defendant applies to set aside judgment entered in default of defence by the plaintiff on 28 August 2007 The defendant claims the judgment was entered during the time his application for Legal Aid was under progress. In spite of the 42 days automatic stay pending the processing of the defendant s Legal Aid application, legal aid was not granted until 23 August 2007. The defendant claims his application was first lodged in early June 2007. On 28 August 2007, judgment was entered. On 13 September 2007, the defendant filed a summons to set aside the judgment. This is the summons before me today. As the defendant did file an acknowledgement of service of writ, but failed to file defence within time, the judgment entered was a regular one. The issue before me today is therefore: (1) Was there an oral agreement as alleged by the defendant between the plaintiff and the defendant s father that the defendant could stay until the building was re developed by the Urban Renewal Authority. (2) Did the plaintiff waive the Notice to Quit by accepting rental deposited by the defendant up to August 2007 into the plaintiff s bank account in spite of the Notice to Quit dated 3 April 2007 and letter before action on 7 May 2007? The subject of the dispute is the tenancy agreement of the premises known as Flat H, 9th Floor, 25 Tung Yan Street, Kowloon, Hong Kong in Kwun Tong

(hereinafter referred to as the property. ) The defendant in his affidavit made an allegation that he has a tenancy with an open end, meaning for a period up to the time of demolition of the property by the Urban Renewal Authority (hereinafter referred to as ) . The defendant admitted that at the time just before the end of the second tenancy agreement in mid-February 2006, the plaintiff had agreed to allow him to stay on until the URA developed the leased property ( the property ). To date, there is no evidence of a date being set for the demolition of the property, therefore, the defendant claims he should be allowed to stay on, relying on the plaintiff s oral tenancy agreement as alleged by the defendant, that he could stay as a tenant until the URA redeveloped the property. The defendant further claimed that the plaintiff had further waived or withdrawn the Notice to Quit sent to the defendant by the plaintiff s solicitor on 3 April 2007, because the plaintiff had continued to accept rental up to August 2007. The plaintiff denies the allegation that there was an oral agreement to allow the defendant to remain as a tenant until the URA redevelops the property. She claimed on her affidavit that the defendant had promised to move out of the premises when she notified them in December 2005 that she intended to repossess the property for the use of her son who had got married

and his wife would be joining him in Hong Kong from the mainland. The plaintiff claimed that she had repeatedly told the defendant s parents and gave them notice to move and the defendant s parents had repeatedly promised to vacate the premises. The first time, they told the plaintiff they would move in July 2006, when failing to vacate after July 2006, they agreed to move on 4 March 2007, i.e. one year after the second tenancy agreement expired, and then they promised to vacate the premises on November 2007. The plaintiff realising that she could not rely on the defendant s words, decided to engage a solicitor to obtain possession of the property, hence, the 3 April 2007 Notice to Quit was served. Discussion The law on tenancy agreement is clear. The agreement must be certain with the parties to the contract clearly named, the consideration spelt out and the term of the lease clearly specified, otherwise, the tenancy agreement would be void for uncertainty. On top of that, the Conveyancing and Property Ordinance provides that any agreement involving land should in writing. In this case, a tenancy agreement over a period of 2 years must be in writing. In Prudential Assurance Company Limited v. London Residuary Body and ors [1992], 3 AER 504, the House of Lords held that a grant for an uncertain term or duration did not create a lease since it was beyond the power of a landlord

and his tenant to create a term which was uncertain. The authors of Hill and Redman on Law on Landlord and Tenant, paragraph 10 to 20 on page A6 said, The attribute of a definite or potentially definite time limit is essential to all tenancies. This was echoed in local cases and practitioner s text books, such as Sarah Neild s Hong Kong Land Law. Therefore, even if the defendant s defence is taken at its highest, the so-called oral agreement is not enforceable and is invalid. The most the defendant can claim is the existence of a tenancy at will or a month to month tenancy because the defendant had held over after the expiry of the second tenancy agreement. This tenancy had been validly terminated when the plaintiff served a one month Notice to Quit notice on the defendant on 3 April 2007. As to the issue of waiver or withdrawal of the Notice to Quit by the plaintiff s acceptance of rental, there are correspondences from the plaintiff s solicitor to the defendant after the Notice to Quit letter of 3 April 2007, they clearly indicated to the defendant the plaintiff s intention to repossess the property. The writ was issued on 14 May 2007 after a letter before action dated 7 May 2007, subsequently, a letter was written to the Director of Legal Aid by the plaintiff s solicitor on 22 June 2007, they clearly showed and indicated the plaintiff s intention to repossess the

property. This clearly answers the point raised. In Hill and Redman s Law of Landlord and Tenant, paragraph 8505, it states that simple payment and acceptance of rental is no longer enough to give rise to a presumption of existence of a periodic tenancy, and that the determining factor is intention, the intention of the parties. The inference from the circumstances of the case, as shown in the correspondences and the rental payment by the defendant of depositing into the plaintiff bank account, I find do not form a waiver of the Notice to Quit, neither did it show that the landlord had changed his mind and would allow the defendant to remain in the premises as a tenant. Conclusion: For the aforesaid reasons, there was no valid oral tenancy agreement due to the uncertainty of term and there was a month to month tenancy or tenancy at will after the expiry of the second tenancy agreement in March 2006, followed by the plaintiff s oral notice to quit, and a written notice to quit on 3 April 2007. The tenancy had been terminated at the expiry of the one month notice to quit. The defendant s payment of rental by depositing monthly payment into the plaintiff s account did not revive the tenancy. Based on the circumstances of this case, therefore the defendant s application is dismissed with costs to be taxed if not agreed. (Discussion re certificate for counsel) I grant a certificate for counsel. (H C Wong) District Court Judge Mr Lam Siu-wah, instructed by Messrs Joseph C T Lee, for the Plaintiff Miss K M Ching, of Messrs F Zimmern & Co, assigned by Director of Legal Aid for the Defendant

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