Supreme Court
Action No. 37 of 1979
30th June, 1980.
Barrington-Jones, J.

Mr. W. P. Elrington, for the Plaintiff
No appearance by the first Defendant
Second Defendant in person

Notice to quit premises and Recovery of premises for non-payment of rent - Defendants failing to pay agreed rent - Order to Second Defendant to quit and deliver up premises.

J U D G M E N T

The Plaintiff took out a Writ of Summons against both Defendants on the 26th February, 1979 claiming: (a) arrears of rent, (b) recovery of possession of a house at No. 5 corner of 1st and Hopkins Street, Kings Park and (c) mesne profits. The case came on for hearing on Wednesday the 28th May, 1980 when Counsel for the Plaintiff advised the Court that the Plaintiff now wished to confine her claim to the recovery of the possession of the house in question, and abandoned all claims in respect of arrears of rent and mesne profits.

The correspondence which was exhibited at the hearing discloses a long history of attempts by the Plaintiff to obtain possession of the house in question and which appears to have begun as long ago as January, 1975.

The first letter (referred to as Letter 1) which was exhibited dated the 27th January, 1975 from the Plaintiff's agent and addressed to the 1st Defendant is important since it recites that the lease for the property in question was for one year from the 1st October, 1973 and thus the lease had expired at the time this particular letter was written. It gave the 1st Defendant three months' notice to vacate the premises in order that the Plaintiff could repair and re-occupy the property herself.

Nothing seems to have happened thereafter until the 23rd October, 1975 when the Plaintiff's agent took out a summons against the 1st Defendant (referred to as Document 2) for recovery of rent arrears and possession of the premises in question. There is a dispute as to the fate of this summons; the Plaintiff's agent said in evidence that it was adjourned but the 2nd Defendant in evidence avers that it was dismissed.

On the 12th November, 1975 the Plaintiff's agent gave the 1st Defendant 30 days' notice to vacate the premises with effect from that date (Letter 3).

On the same day the Plaintiff's agent returned the 1st Defendant's cheque for $280 under cover of a letter (Letter 4) re-iterating the notice to vacate contained in letter 3.

On the 22nd December, 1975 Mr. Balderamos, as solicitor for the Plaintiff, gave notice to the 1st Defendant in writing (Letter 5) for the 1st Defendant to quit and deliver up the premises on the 31st January, 1976.

On the 29th March, 1976 the Plaintiff's agent rescinded the notice to quit (Letter 6) and advised the 2nd Defendant that he could continue to occupy the premises provided he paid all arrears due from the 1st September, 1975 to that date.

On the 5th April, 1976 (Letter 7) the 2nd Defendant forwarded a cheque for $140 "being the rent due for April, 1976" and undertook to try to settle the arrears due as soon as possible.

On the 26th April, 1976 a receipt was issued (Document 8) for the above amount on behalf of Mr. Balderamos endorsed "rent for the month of September, 1975 collected from Nicholas Pollard Jr." (the 1st Defendant)

On the 28th May, 1976 the 2nd Defendant wrote to the manager of the Reconstruction and Development Corporation (Letter 9) in that official's capacity as the superior of the Plaintiffs agent and inter alia took issue with the endorsement on the receipt referred to here as Document 8.

There appears to have been no reply to that letter and on the 15th August, 1978 (Letter 10) the 2nd Defendant wrote to Mr. B. Q. A. Pitts referring to a letter dated the 29th July, 1978 addressed to the 1st Defendant. There is no indication in the letter as to its author, and the letter itself was not exhibited in Court.

It further appears that there was no reply to Letter 10 and the next development was a Notice to Quit (Document 11) addressed by Mr. B. Q. A. Pitts as solicitor for the Plaintiff to the 2nd Defendant. This document is dated the 31st August, 1978 and called on the 2nd Defendant to deliver up the premises to the Plaintiff by the 30th September, 1978.

On the 26th February, 1979 the Plaintiff took out the Writ of Summons which grounds this Action and the Statement of Claim therein included the Plaintiff's claim to recover possession of the premises.

However, a final letter was also exhibited dated the 15th May, 1980 (Letter 12) which was from the Plaintiff's agent to the 2nd Defendant informing him that negotiations for the sale of the property occupied... "have been initiated and should be completed by the end of June, 1980."

So that it immediately becomes clear that the Plaintiff has been attempting to regain possession of the premises in question from the 2nd Defendant since the 31st August, 1978 but to no avail and the 2nd Defendant remains in occupation.

A defence and counterclaim was filed by the two Defendants on the 15th March, 1979 but since the Plaintiff is not now maintaining her claims for arrears of rent and mesne profits there is no need to deal with those particular aspects of the case. But it is the Defendants' contention that the Plaintiff had no legal right under the Rent Restriction Ordinance to recover possession of the premises.

In this connection it is common ground that no rent has been paid for the premises since April, 1976. Without going into the merits of the various reasons given by the 2nd Defendant as to why rent was not paid from that time; it is assumed that the 2nd Defendant's reference to the Rent Restriction Ordinance refers to the Restriction on Ejectment provision, but it is, of course, a condition of Section 10 that no judgment or order for ejectment of a tenant from premises... shall be given or made so long as the tenant continues to pay rent at the agreed rate. Here it is quite clear that the tenant did not continue to pay rent at the agreed rate during the period of his occupancy, in fact, it is evident that he only paid one month's rent for the premises after he assumed the tenancy from his son, the 1st Defendant.

The 2nd Defendant appears to primarily base his reasons for not paying any further rent on the fact that he took exception to the endorsement on the receipt for $140 (Document 8) in respect of rent which he had sent on the 5th April, 1976. The 2nd Defendant avers that this, taken with the fact that he did not receive a reply to his letters addressed to the manager of the Reconstruction and Development Corporation (Letter 9) and to Mr. B. Q. A. Pitts (Letter 10), entitled him to withhold further rent payment indefinitely. It was clear from the Defendant's evidence that he considered himself perfectly justified in taking this stance until such time as he considered that his complaints had been put right.

The evidence of the Plaintiff's agent, Mr. Michael Usher, indicates that the 2nd Defendant was permitted to occupy the premises at No. 5 1st Street, King's Park, at a rent of $140 after the departure of the 1st Defendant on condition that the 2nd Defendant paid that arrears of rent due from the 1st September, 1975 to the 29th March, 1976; and this is substantiated in Letter 6. It is apparent that the Defendant undertook to try and settle the arrears as soon as possible as set out in his letter dated the 5th April, 1976 (Letter 7) but he hedged his undertaking with a curious concluding paragraph to that letter, it reads: -

"This payment is being made together with my commitment to pay arrears due without prejudice to the legal position existing before I wrote this letter and made this payment."

I am at a loss to understand what the 2nd Defendant actually meant by this paragraph.

It is thus abundantly clear that the 2nd Defendant has not paid any rent for the premises he has occupied since April, 1976 and that his decision not to pay rent was an arbitrary and unilateral act on his part, largely based on his objection to the form of endorsement on the receipt for his first month's rent as the incoming tenant of the premises (Document 8) as well as other complaints. In my view, his attitude was on the evidence totally unjustified.

It is also clear from the evidence that whilst there has been a degree of muddle and misunderstanding between the Plaintiff's agent and the 2nd Defendant, it is equally apparent that the Plaintiff has made out a good and proper case for the recovery of the possession of the premises on the simple ground of non-payment of rent by the 2nd Defendant over a long period of time.

It follows that there will be judgment for the Plaintiff and she is to have possession of the premises. I therefore order that the 2nd Defendant quit and deliver up the premises on or before the 31st July, 1980.

I make no order as to costs.

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