LINKMAX ENTERPRISE LTD v. CHO SHU PUI AND OTHERS

LINKMAX ENTERPRISE LTD v. CHO SHU PUI AND OTHERS

The court found on the facts that the receipts (including the 17 August 2007 receipt) were routine rent receipts and were not intended or acted upon as a written instrument creating or evidencing a new fixed term tenancy; Lau treated the tenancy as continued on a monthly basis and did not regard Cho as personal...

Source-derived case information.

Citation
LINKMAX ENTERPRISE LTD v. CHO SHU PUI AND OTHERS
Parties
Plaintiff: Linkmax Enterprise Limited; 1st Defendant: Cho Shu Pui
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 November 2008
Case Number
DCMP423/2008
Procedural Posture
Miscellaneous Proceedings Under Order 113, District Court (possession/mesne Profits) / Judgment (19 November 2008)
Outcome
Judgment for Plaintiff; Defendants ordered to deliver vacant possession; Defendants to pay mesne profits and costs; nisi costs order made against 1st Defendant
Legal Topics
Possession, Mesne Profits, Tenancy Term (periodic V Fixed), Registrability of Instruments Affecting Land, Trespass
Source Language
en
Landlord and Tenant Property Law Civil Procedure Land Registration Possession Mesne Profits Tenancy Term (periodic V Fixed) Registrability of Instruments Affecting Land +1 more

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Parties

Linkmax Enterprise Limited

Plaintiff

Cho Shu Pui

1st Defendant

Procedural Posture

Miscellaneous Proceedings Under Order 113, District Court (possession/mesne Profits) / Judgment (19 November 2008)

Legal Issues

  1. 1 Whether the 1st Defendant was a lawful tenant or a trespasser
  2. 2 Whether the 17 August receipt constituted a written instrument affecting land requiring registration under the Land Registration Ordinance
  3. 3 Whether receipts and payment records proved a fixed term tenancy and transfer of deposit to the 1st Defendant

Ratio Decidendi

The court found on the facts that the receipts (including the 17 August 2007 receipt) were routine rent receipts and were not intended or acted upon as a written instrument creating or evidencing a new fixed term tenancy; Lau treated the tenancy as continued on a monthly basis and did not regard Cho as personal tenant; therefore Cho was not a lawful tenant but a trespasser and the Plaintiff was entitled to possession and mesne profits at HK$14,500 per month from 4 January 2008 until vacant possession, plus interest and costs.

Court Disposition

Judgment for Plaintiff; Defendants ordered to deliver vacant possession; Defendants to pay mesne profits and costs; nisi costs order made against 1st Defendant

Orders

  • The 1st and the 2nd Defendants do deliver vacant possession of the property to the Plaintiff
  • The 1st and the 2nd Defendants do pay to the Plaintiff damages for the occupation of the property (mesne profits) at the rate of HK$14,500 per month from 4 January 2008 until delivery of vacant possession