HA SHEUNG PING AND ANOTHER v. LO SIU YIN AND ANOTHER

HA SHEUNG PING AND ANOTHER v. LO SIU YIN AND ANOTHER

Clause 3 did not contain clear and unambiguous language dispensing with the common‑law requirement of a prior demand; no common‑law demand was made, therefore the 1st Defendant did not lawfully terminate or forfeit the tenancy and the tenancy continued until the 2nd Defendant obtained a right to possession.

Citation
HA SHEUNG PING AND ANOTHER v. LO SIU YIN AND ANOTHER
Parties
1st Plaintiff: HA SHEUNG PING; 2nd Plaintiff: TAM CHUEN FOOK; 1st Defendant: LO SIU YIN; 2nd Defendant: EAGLEARN INTERNATIONAL LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 February 1994
Case Number
HCA9087/1993
Procedural Posture
Landlord and Tenant Possession and Trespass / Hearing on Summons for Final Judgment (possession and Damages)
Outcome
Declaration that the tenancy was not lawfully forfeited and continued to subsist until the 2nd Defendant obtained a right to possession; judgment nisi for damages for trespass against both Defendants; costs awarded to the 1st Plaintiff and the 2nd Defendant against the 1st Defendant.
Legal Topics
Forfeiture, Possession, Trespass, Distress (execution), Construction of Forfeiture Clause, Abandonment
Source Language
EN
Landlord and Tenant Property Civil Procedure Contract Forfeiture Possession Trespass Distress (execution) +2 more

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Parties

HA SHEUNG PING

1st Plaintiff

TAM CHUEN FOOK

2nd Plaintiff

LO SIU YIN

1st Defendant

EAGLEARN INTERNATIONAL LIMITED

2nd Defendant

Procedural Posture

Landlord and Tenant Possession and Trespass / Hearing on Summons for Final Judgment (possession and Damages)

Legal Issues

  1. 1 Whether the landlord lawfully forfeited the tenancy for non-payment of rent without a prior common‑law demand
  2. 2 Whether clause 3 of the tenancy dispenses with the requirement of a common‑law demand
  3. 3 Whether execution of distress waived forfeiture or recognised subsistence of tenancy

Ratio Decidendi

Clause 3 did not contain clear and unambiguous language dispensing with the common‑law requirement of a prior demand; no common‑law demand was made, therefore the 1st Defendant did not lawfully terminate or forfeit the tenancy and the tenancy continued until the 2nd Defendant obtained a right to possession.

Court Disposition

Declaration that the tenancy was not lawfully forfeited and continued to subsist until the 2nd Defendant obtained a right to possession; judgment nisi for damages for trespass against both Defendants; costs awarded to the 1st Plaintiff and the 2nd Defendant against the 1st Defendant.

Orders

  • Declaration that the agreement between the 1st Plaintiff and 1st Defendant was not lawfully forfeited and continued to subsist until such time as the 2nd Defendant obtained a right to possession of the flat; if no arrangement is made the order may be varied to one for possession against both Defendants
  • Judgment for the 1st Plaintiff for damages for trespass to be assessed against both Defendants (with hope Plaintiff will not pursue 2nd Defendant)