DUCKCROWN INVESTMENTS LTD v. AUTO PLAZA LTD

DUCKCROWN INVESTMENTS LTD v. AUTO PLAZA LTD

The evidence and past course of dealings showed it was highly unlikely a new written or binding oral one-year tenancy was agreed; contemporaneous January 2008 letter and the parties' historical practice supported that DIL occupied as a monthly licencee after expiry of the 2007 Tenancy Agreement. Accordingly APL was entitled to possession and payment of specified arrears; contractual anti-set-off provisions barred DIL from setting off some specified arrears but, absent those provisions, equitable set-off could be relied on against the remaining monetary claims.

Citation
DUCKCROWN INVESTMENTS LTD v. AUTO PLAZA LTD
Parties
Plaintiff (hca761/2008); Defendant (hca724/2008): Auto Plaza Limited; Defendant (hca761/2008); Plaintiff (hca724/2008): Duckcrown Investments Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 August 2008
Case Number
HCA724/2008
Procedural Posture
Civil Landlord and Tenant (possession and Debt) / Decision on Application for Summary Judgment; Directions for Consolidation
Outcome
Judgment entered for Auto Plaza Limited for possession of the 13/F, the Light Boxes and the Signage and for payment of HK$1,955,845 with interest; DIL given unconditional leave to defend the balance of APL's claims; costs ordered.
Legal Topics
Possession, Tenancy V Licence, Summary Judgment, Mesne Profit, Equitable Set Off, Contractual Anti Set Off Clauses
Source Language
EN
Landlord and Tenant Contract Equity Civil Procedure Possession Tenancy V Licence Summary Judgment Mesne Profit +2 more

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Parties

Auto Plaza Limited

Plaintiff (hca761/2008); Defendant (hca724/2008)

Duckcrown Investments Limited

Defendant (hca761/2008); Plaintiff (hca724/2008)

Procedural Posture

Civil Landlord and Tenant (possession and Debt) / Decision on Application for Summary Judgment; Directions for Consolidation

Legal Issues

  1. 1 Whether an oral one-year tenancy (the Oral Agreement) arose on or about 17 October 2007 or whether defendant occupied on a monthly licence after expiry of the 2007 Tenancy Agreement
  2. 2 Whether plaintiff was entitled to possession of the 13/F, Light Boxes and Signage
  3. 3 Whether defendant could rely on equitable set-off based on its counterclaims in HCA724/2008 against plaintiff's monetary claims

Ratio Decidendi

The evidence and past course of dealings showed it was highly unlikely a new written or binding oral one-year tenancy was agreed; contemporaneous January 2008 letter and the parties' historical practice supported that DIL occupied as a monthly licencee after expiry of the 2007 Tenancy Agreement. Accordingly APL was entitled to possession and payment of specified arrears; contractual anti-set-off provisions barred DIL from setting off some specified arrears but, absent those provisions, equitable set-off could be relied on against the remaining monetary claims.

Court Disposition

Judgment entered for Auto Plaza Limited for possession of the 13/F, the Light Boxes and the Signage and for payment of HK$1,955,845 with interest; DIL given unconditional leave to defend the balance of APL's claims; costs ordered.

Orders

  • Judgment for possession of 13/F, Light Boxes and Signage in favour of Auto Plaza Limited
  • Judgment for payment of HK$1,955,845 with interest at the judgment rate from date of writ until payment