Archive for the ‘common law remedies’ Category

Issue and service of a writ for possession is an election to forfeit the lease

April 27, 2011

In Po Wai Ching v Pfeifer ([1983] 1 HKC 204, CA) a landlord issued and served a writ for possession. The Court of Appeal pointed out that this is an election to forfeit the lease and it is not possible to rely on any alleged repudiatory breach after that since there is no longer a contract in existence.

Forfeiture and common law remedies can co-exist

January 8, 2011

The fact that a landlord seeks to forfeit a lease does not prevent him from seeking, in addition, common law remedies such as damages.

In Well Century Holdings Ltd v Leung Kam Yu ([2003] 2 HKLRD 653, CA) the tenant of some commercial premises fell into arrears with the rent and other sums due under the lease. The landlord brought forfeiture proceedings. It also sought damages in respect of loss of rent until the property could be re-let and for the difference between the rent paid by the tenant and that payable under any new lease. The Court of Appeal (Yuen JA giving the only full judgment) agreed that common law remedies (such as damages) could be sought in addition to forfeiture and the concept of repudiatory breach could be relied on. This was so provided that relief under section 21F of the High Court Ordinance was no longer available. It might be true even if such relief was still available (this point did not arise in the present proceedings). This case is a further example of the contractual approach to thinking about the nature of the lease.