Li Yee-lai v. Chan Kwok-chun
Read the full judgment text of CACV 191/1980 on BabelCite. This Court of Appeal judgment.
1. The Appellant appeals against the decision of His Honour Judge Fung dismissing an action for possession under s.53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance. The Plaintiff alleged that she reasonably required the premises for herself, her husband and six children, three of whom are over the age of eighteen, two being of one sex and one of the other. The judge took the view that the premises were not reasonably required and that, even if they had been, it was shown to be manif
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CACV000191/1980
----------------- Coram: Sir Alan Huggins, V.-P., Leonard and Cons, JJ.A. Date of Judgment: 13th February 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. The Appellant appeals against the decision of His Honour Judge Fung dismissing an action for possession under s.53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance. The Plaintiff alleged that she reasonably required the premises for herself, her husband and six children, three of whom are over the age of eighteen, two being of one sex and one of the other. The judge took the view that the premises were not reasonably required and that, even if they had been, it was shown to be manifestly unjust and inequitable that an order for possession should be made. On behalf of the Plaintiff it is submitted that both those conclusions were erroneous. 2. The judge found, first, that the Plaintiff was living in a flat which consisted of three rooms, one of which had been sublet thirteen years ago to the god-parents of one of her daughters. That one room was of about 100 sq. ft., leaving two rooms totalling approximately 300 sq. ft. for the whole of her family. The suit premises consisted of some 600 to 700 sq. ft. They were occupied by a man and his adopted sons, a married couple and two children, and three other families consisting of another eight persons. Although the judgment says the total number was fourteen, we calculate that it is in fact fifteen. The learned judge commented that there was no plan as to the future of the god-parents and that there was no reasonable explanation why the Plaintiff did not claim the one room which was let to the god-parents. He did not consider whether or not it was a foregone conclusion that a suit brought against the god-parents would be successful. He did say that one room in the Plaintiff's premises was a bit crowded for the whole family, but he suggested that they could easily turn the second room, which was used as a living room into a partitioned area and thus make, if not more space available, at least more convenient space available. The contention of the Plaintiff, of course, if that it is inconvenient for near adults of opposite sexes to have to share a room together and with their parents and other children. 3. I am clearly of opinion that the learned judge took into consideration matters which were not properly to be considered in deciding that the Plaintiff did not reasonably require these premises. In my view she did reasonably require them. 4. As to the question whether it was manifestly unjust or unreasonable to make an order, again, it seems to me that the learned judge took into consideration matters which were not relevant. He said that the Plaintiff should have been in a position to know, when she let the room and the suit premises, that the children would grow up and require more space, and further remarked with apparent disapproval that she had let the suit premises at a rent higher than that she was paying for her own premises and was, in addition, receiving rent from the god-parents. With respect I do not think either point is valid. Undoubtedly the hardship on the sub-tenants is a matter which is relevant, although the test is not one of whether the Plaintiff or the Defendant will suffer the greater hardship. In my view, the learned judge having considered matters which were not relevant, we are left with a decision on the just and equitable point which either must be decided by us or be sent back to the District Court to be decided upon a new trial. I see no reason why we should not make the decision, since everything is available to us and no part of the decision rests upon the credibility of the witnesses. I can see that there will be hardship if an order for possession is made, but there will also be hardship on the Plaintiff if an order is not made. I am not persuaded that the hardship on the Defendant will be so great that it would manifestly be unjust and inequitable to make an order against him. 5. For these reasons I would allow the appeal and enter judgment in favour of the Plaintiff for possession. Leonard, J.A.: 6. I agree. Cons, J.A.: 7. I too agree that the appeal should be allowed and judgment entered for the Plaintiff. 13th February 1981. Representation: |