232
THE LAW COURTS
SUMMARY COURT.
RICH TENANTS OPPOSE EJECT-
MENT.
An important action was heard under the Rents' Ordinance before the Puisne
Judge, Mr. J. R. Wood, in the Summary Court, on August 30th, when the Tung Wah Hospital proceeded against the Kwong Sang Hong, Ltd., 248-252, Des Vœux Road Central, for recovery of possession of No. 248, Des Voeux Road Central and No. 40, Winglok Street.
Mr. C. G. Alabaster, who appeared for the plaintiffs, read a letter received from the defendants on June 4th, stating that the latter had long intended to surrender the premises but had not been able to secure alternative accommodation. How- ever, the letter continued, defendants had recently seen a chance which they might seize and they begged to state that they would vacate the premises on July
4th.
Mr. F. C. Jenkin, who appeared for the defendants, asked that the plaintiffs formally prove prejudice.
THE HONGKONG WEEKLY PRESS &
What was the highest tender for the Des Voeux Road premises ?—$450.
And the Winglok Street promises $287.50.
The period of tenancy --Three years in each case.
Why, having increased on December 10th, did you write us notice to quit on April 5th-That was the directors' deci- sion.
Witness further stated that no other tenants had been treated in the same way as the defendants. The defendants cir- culated notices stating that the Hospital had not treated them fairly.
The managing director of the Kwong Sang Hong, Ltd., a manufacturing drug and toilet requisite firm, said apart from the ground floor, which was sub-let in No. 248, Des Voeux Road was used for November last to the Yee Hing Bank,
of the Winglok Street premises was used domestic purposes. Only a small part as a store, and the rest for domestic pur- poses, also the greater part of No. 42 and 44. fendants gave notice to their sub-tenants, After receiving notice to quit de- but all asked for further time as they could not get new premises.
The question of the third parties then arose, how they were to be protected or compensated, if an order were made in favour of the defendants.
Cross-examined by Mr. Alabaster, the managing director admitted that his firm had a large number of other premises which could be used for domestic pur- Mr. Alabaster said that the letter was poses. He was aware that the increased a definite agreement to vacate the pre-rent had been sanctioned by the Secretary mises on July 4th. In consequence of for Chinese Affairs. that notice the directors of the hospital In answer to Mr. Jenkin, the witness decided three days later to advertise the said that his firm was prepared to pay premises for letting by tender. A num- any reasonable rent and pay compensa- ber of tenders were received and the tion to anyone to whom it might be ac- highest for each house was accepted. The ceptable, if it could retain the premises. defendants, however, did not the vacate the premises and on August 17th the plain- tiffs received a solicitor's letter threaten- ing proceedings by one of the successful tenderers whose deposit of $500 as guarantee of good faith had been retained. The other tenderer had not sent a solici- tor's letter, but he had asked for his pre- mises, and this action was being taken in order that both might get possession. Mr. Alabaster contended that under the section it was not necessary for him to prove serious prejudice, but merely that the tenant had agreed in writing to quit and that in consequence of that notice the plaintiffs had contracted to let a domestic tenement. That was
serious prejudice.
a
The Secretary of the Hospital confirm ed Mr. Alabaster's statement, and, cross examined by Mr. Jenkin, the witness said that on November 9th last year the rent of the Des Voeux Road premises was increased from $180 to $240, and the rent of the Winglok Street premises from $165 to $200, both increases starting from December 10th. On January 15th a fur- ther notice was sent to the defendants increasing the rents to $225 and $195, respectively.
Mr. Jenkin: That letter stated that if these increases were not paid on that date plaintiffs' solicitors would be 10- structed to let the premises by public
tender?
Witness: Yes.
The defendants did pay?—Yes. The next step you took was to Serve them on April 5th with this notice to quit? Yes.
You knew at the time that the defeu dants had sub-let the ground floor of the Des Voeux Road premises to the Yee Hing Bank?-Yes.
You knew also that the defendants were owners of No. 42 and 44 Winglok Street? I did not know.
You knew that when we wrote our let- ter in the expectation that we were going to get other premises?—Yes.
Our letter of July 2nd informed you that we had been unable to get other premises and asked that we might be allowed to remain in your premises ?— Yes.
Mr. Jenkin addressed the Judge at considerable length, asking his Honour to make a judicial statement on the paragraph in the Ordinance word- ed Or shall have agreed in writing to quit." which he asserted caused hardship to the tenant who had acted decently by acknowledging notice to quit, but pro tected the sub-tenant who made no such acknowledgment.
that no case had been established for Mr. Alabaster, in his address submitted
action under the Ordnance.
180
[September 3rd, 1921.
domestic. Also in considering the posi tion of the defendants I have to con- sider the position of the third parties to whom the hospital is under contract. It is clear from the evidence that the defen- dants themselves have under their control a large number of premises which they can adapt in an emergency for the ac- commodation of their employés at pre- sent accommodated in the Tung Wah the order but to suspend it for seven Hospital's premises. I propose to make days. Judgment for plaintiffs with
costs.
A "SKELETON " FIRM.
Mr. M. K. Lo represented the plaintiff, and Mr. F. E. Nash the defendant, in Judge (Mr. J. R. Wood), in the Summary a Rents Ordinance case before the Puisne Court, on August 31st.
In this case, the tenant had given notice to quit, but he had remained in posses- sion because, when the Rents Ordinance mises to which he intended to go did not came into force, the tenant of the pre- vacate. The landlord sought to enforce the removal of his tenant (the defendant in the action) on the ground that the premises had been let to a firm and that therefore the landlord was under a legal obligation to the intending tenant.
Mr. Nash submitted that the contract was not enforcible. Under Section 4 of the Statute of Frauds (Woodfall on Landlord and Tenant, page 90) a contract. of this kind must be in writing.
The Judge: Do you mean to say you cannot have an enforcible monthly tenancy, unless it is in writing!
Mr. Nash: Yes, unless there is posses- sion. An agreement to let must be in writing, for however short a time.
Mr. Lo objected that a defence under the Statute of Frauds could only be raised after 24 hours notice to the other side, but the Judge overruled the objec- tion.
Mr. Nash also submitted that, as the new tenant to whom the landlord had let was a firm which had not yet come into existence the contract was not en- forcible. (Laws of England, Vol. VII., p. 370). "The memorandum must that there can be no dispute as to who describe the parties in such a
they are. Mr. Nash also said that a firm could not take a lease in its own name (Lindley on Partnerships).
manner
here, for Chinese firms.
The Judge: We have special provision,
to
by both parties, but by the party charged. The Judge: It has not got to be signed The party charged, for our purpose, is the present plaintiff. Why is it not suffi cient?
Giving judgment, his Honour said: selves within the proviso of sub-section The plaintiffs have clearly brought them- D. of section 4, section 1, and they are entitled to their order. The defendants have asked the Court to suspend the get a memorandum of agreement with
The plaintiff, who had been sent order for three months on two grounds, his new tenant, now brought the docu- the one being that of hardship to them-ment into court. selves and the other
After examining it, arbitrary conduct brought against the prepared to argue that this is not suffi- an allegation of the Judge asked Mr. Nash, Are you plaintiffs, the Tung Wah Hospital. appears that in January last the defen-
It cient?' dants issued a printed circular to their cient because one of the parties, not being Mr. Nash said he was; it was insuffi- shareholders who number dred in which they complained that the
several hun-in existence, could not sign. action of the hospital in raising their rent was not likely to commend itself to public approval locally. In my opinion, when this matter came to the notice of the directors of the hospital they were entitled to resent it and to express their resentment by giving notice as they did to the defendants to quit the premises. After the notice to quit negotiations pro- ceeded between the parties and continued for some time apparently on a friendly footing, no further mention being made of the alleged arbitrary action of the hospital in the letter written by the de- fendants on June 4th which contained their agreement to quit on plaintiffs have based their claim.
which the allegation has been renewed in this Court The
and the fact that it has been made here will naturally lead to a more scrutiny of the defendants' claim for the exact indulgence in respect of hardship. As to the question of hardship I am led to suspect that it is more commercial than
M. Nash: Because it is not clear who the other party is.
vision in the code giving a firm the right The Judge said there was a special pro- to sue in their own this was a skeleton firm at present and name. Admittedly only a small proportion of the capital had been subscribed. The contract had been made by the already entered the firm, in the capacity persons who had of trustees for the persons whom they intended to invite to join them. His made for possession. Lordship decided that an order must be
Mr. Nash asked for three months sus- mentioned that the reason the tenants pension on the ground of hardship, and
gave notice, in the first instance, was that the enormous increase of a hundred per cent. in the rent had been demanded,
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