SHAM TSENG CHAN KEE ROASTED GOOSE CO LTD v. GARWIN INTERNATIONAL LTD

SHAM TSENG CHAN KEE ROASTED GOOSE CO LTD v. GARWIN INTERNATIONAL LTD

The appeal was allowed and unconditional leave to defend granted because a triable issue existed as to whether an oral agreement created a new lease; the undisputed surrender of the car-parking space supported the defendant's account; clause 4 did not preclude an oral agreement and documentary absence was not fatal where oral testimony could prove the fact; and no application for interim payment had been made so the court would not impose payment into court as a condition of leave.

Citation
SHAM TSENG CHAN KEE ROASTED GOOSE CO LTD v. GARWIN INTERNATIONAL LTD
Parties
Landlord: Plaintiff; Tenant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 April 2008
Case Number
DCCJ4496/2007
Procedural Posture
Landlord and Tenant Possession Claim / Appeal From Summary Judgment; Leave to Defend Granted; Order for Speedy Trial
Outcome
Appeal allowed; Defendant granted unconditional leave to defend the Plaintiff's claim; order for speedy trial
Legal Topics
Possession, Summary Judgment, Oral Agreement for Lease, Mesne Profits, Leave to Defend, Speedy Trial
Source Language
EN
Property Landlord and Tenant Civil Procedure Possession Summary Judgment Oral Agreement for Lease Mesne Profits Leave to Defend +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Party arguments 2
Sign in to unlock

Parties

Plaintiff

Landlord

Defendant

Tenant

Procedural Posture

Landlord and Tenant Possession Claim / Appeal From Summary Judgment; Leave to Defend Granted; Order for Speedy Trial

Legal Issues

  1. 1 Whether an oral agreement created a new lease for the Shop
  2. 2 Whether clause 4 of the previous written tenancy required a new tenancy to be in writing
  3. 3 Whether the defendant established an arguable triable defence sufficient to defeat summary judgment

Ratio Decidendi

The appeal was allowed and unconditional leave to defend granted because a triable issue existed as to whether an oral agreement created a new lease; the undisputed surrender of the car-parking space supported the defendant's account; clause 4 did not preclude an oral agreement and documentary absence was not fatal where oral testimony could prove the fact; and no application for interim payment had been made so the court would not impose payment into court as a condition of leave.

Court Disposition

Appeal allowed; Defendant granted unconditional leave to defend the Plaintiff's claim; order for speedy trial

Orders

  • Allow appeal and grant Defendant unconditional leave to defend the Plaintiff's claim
  • Order for a speedy trial