Thean J

This appeal arose out of an action brought by the 1st respondents in the District Court against the appellants and the 2nd respondent for recovery of vacant possession of the ground floor of a two-storey shophouse, known as No. 71, Kampong Bahru Road, Singapore. The 1st respondents are the owners of the premises, which are premises within the meaning of the Control of Rent Act (Cap. 266). Their predecessors in title granted to one Tay Ping Kee, since deceased, a monthly tenancy of the said ground floor ("the said premises") at a monthly rent of $40 per month initially and subsequently at $25 per month which was later raised to $26 per month. The appellants are the administrators of the estate of Tay Ping Kee deceased. The claim for possession of the said premises was founded on two grounds, namely:——

(i) that the said Tay Ping Kee deceased sublet or parted with possession of the said premises to the 2nd respondent in breach of a covenant not to assign, sublet or part with possession of the said premises or any part thereof without the prior consent of the owners, and

(ii) that the said Tay Ping Kee deceased received in respect of the subletting rent in excess of the aggregate of 110% of the recoverable rent paid for the said premises and that after the death of the said Tay Ping Kee, the appellants continued to collect rent in respect of the sub-tenancy in excess of the said limit.

Before the learned District Judge, the dispute between the parties resolved into three issues: (i) whether there was a prohibition against subletting; (ii) whether there was a subletting, and (iii) whether the rent received from the 2nd respondent was in excess of the aggregate of 110% of the recoverable rent paid for the said premises. The learned District Judge found that the 1st respondents had not discharged the burden of proving that there was a prohibition against subletting, and accordingly, the first ground for recovery of vacant possession failed. On the second issue, the learned District Judge found that there was a subletting of the said premises to the 2nd respondent and rejected the appellants' plea that only a licence was granted to the 2nd respondent. On the third issue, the learned District Judge found that the rent received from the 2nd respondent was in excess of the aggregate of 110% of the recoverable rent paid for the said premises. Accordingly, he held that the 1st respondents were entitled to recover as against the appellants vacant possession of the said premises, but he dismissed the claim against the 2nd respondent.

Against the decision of the learned District Judge, the appellants appealed to the High Court. The High Court affirmed the finding of the learned District Judge that there was a subletting of the said premises to the 2nd respondent in spite of the several successive agreements which were described as "licence agreements" and that the rent received from the 2nd respondent was in excess of the aggregate of 110% of the recoverable rent paid for the said premises, and dismissed the appeal with costs. Against that decision this appeal was brought, and at the conclusion of the hearing of the appeal we dismissed it with costs.

The point canvassed before us was that the 2nd respondent was a licensee, and not a sub-tenant, of the said premises and reliance was placed on a series of agreements made between the late Tay Ping Kee and the 2nd respondent and the last agreement made between the 2nd appellant, as the administrator of the estate of Tay Ping Kee deceased, and the 2nd respondent. It was argued on behalf of the appellants that the learned Judge in the High Court did not apply his mind to the question whether the agreements made created a licence or a tenancy of the said premises, that this question turned on the intention of the parties to be gathered not only from the evidence adduced but also from the agreements executed by them, and that if the learned Judge had approached the question with this point