LUEN WO LAND INVESTMENT CO LTD v. YAU WAI NAM

DCCJ556/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 556 OF 2005

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BETWEEN

LUEN WO LAND INVESTMENT COMPANY Plaintiff
LIMITED (聯和置業有限公司)

and

YAU WAI NAM (丘偉南) Defendant
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Before: Deputy District Judge Herbert Au-Yeung in Court

Date of Hearing: 8 September 2010

Date of Delivery of Decision: 8 September 2010

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Decision

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1. The defendant suggested that he should be allowed to rely on an argumentthat he was in fact a protected tenant under Part IV ofthe Landlord and Tenant (Consolidation) Ordinance (Cap.7, Laws of Hong Kong).

2. With respect, I do not agree.

3. Firstly, this line of defence has not been pleaded. Order 18 rule 8(2) of the Rules of the District Court provides that:

“…a defendant to an action for recovery of land must plead specifically every ground of defence on which he relies, and a pleathat he is in possession of the land by himself or his tenant is not sufficient.”

4. In my view, it can only be right for the defendant to do so, otherwise, the purpose of having pleadings would be defeated, for theplaintiff would not be able to appreciate from the pleadings what case it has to meet at the trial.

5. Secondly, not only this line of defence is not pleaded, it is contrary to the defendant’s pleaded case.

6. In paragraph 10(b) of the Defence and Counterclaim, it was pleaded that after the expiry of the original tenancy agreement, thedefendant has continued to rent the subject land on a monthly basis. This is inconsistent with the defendant’s new proposed casethat the tenancy was in fact continued by virtue of the Landlord and Tenant (Consolidation) Ordinance right after the expiry of the original term.

7. Mr. Wong for the defendant at one stage also suggested that since all the facts in support of proprietary estoppel were before thisCourt, he should be allowed to run the argument of proprietary estoppel. He subsequently abandoned this line of argument as he fairlyaccepted that he should not go through the backdoor in introducing this argument again in the light of my dismissal of his applicationto amend the Defence and Counterclaim yesterday. In my view, this must be right because it is well established that estoppel mustbe specifically pleaded in the pleadings.

8. For the above reasons, I would dismiss the defendant’s application with costs with certificate for counsel, such costs to be taxedif not agreed. The defendant’s own costs shall be taxed according to Legal Aid Regulations.

Herbert Au-Yeung
Deputy District Judge

Mr. C. Y. Li, instructed by Messrs Iu, Lai & Li, for the plaintiff

Mr. Philip Wong, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the defendant