Chan Shui Kwan and Another v. Tong Chiu Hon

Case No.CACV 202/1985

Court

Court of Appeal

Date14 Mar 1986

Judge—

Case Document

100%Judiciary

CACV000202/1985

IN THE COURT OF APPEAL

1985, No 202
(Civil)

BETWEEN

	CHAN SHUI KWAN	Plaintiffs
	CHAN SHUI MING

	AND

	TONG CHIU HON	Defendant

_________________

Coram: Sir Alan Huggins, V. -P., Kempster, J. A. & Power, J.

Date of Hearing: 14 March 1986

Date of Judgment: 14 March 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Tenant appeals against an order of a District Judge granting possession of premises. The premises claimed were the roof of a house in Kowloon.

2. In 1971 the Defendant took a lease of the second floor "(including its Roof)" of this house for a period of five years from the Plaintiff's predecessor in title. The lease expired in 1976. It is suggested that at that time a statutory tenancy arose. The argument on behalf of the Plaintiff is that no such statutory tenancy arose because of a provision in the agreement (c1. 4(a)) which expressly, it is submitted, excluded the operation of the Landlord and Tenant Ordinance. The clause reads:

"Provided always and it is hereby expressly agreed and declared as follows:-

(a)

That the tenant intends by this Agreement to deprive himself of all protection against ejectment afforded by the Landlord and Tenant Ordinance, (Chapter 255) and/or any legislation which is substituted therefor and he agrees and undertakes that he shall quit and deliver up vacant possession of the said premises to the landlords at the expiration of the term hereby granted."

3. It is argued on behalf of the Tenant that that clause does not operate, because the provision which is now numbered s.22 is limited to cases where it is shown that possession is required for occupation by the Landlord or a member of his family or for a sale of the premises. Section 22 is in these terms:

Subject to the provisions of s. 15 nothing in this Part shall be taken to limit the right of a landlord and tenant whether or not the tenant is a tenant to whom s. 17(2) applies to agree to such stipulations and conditions as they shall think fit in regard to the duration of the tenancy and in particular to any stipulation in regard to termination of the tenancy in the event of the landlord desiring to sell the premises or to obtain possession for occupation by himself or any member of his family."

and there then follows a proviso:

Provided that no landlord shall be entitled by reason of any agreement made under the foregoing provision to obtain an order for the ejectment of any tenant unless he satisfies the tribunal or a court, as the case may be, that the tenant intended by such agreement to deprive himself of the protection against ejectment afforded by this Part."

Mr. Spicer has suggested that it would be wrong to assume that the mere fact of an agreement in regard to the duration of the tenancy should carry with it an implication of an intention to deprive the Tenant of protection. In my view there is something more than a mere agreement here: there is a recital of the Tenant's intention; and I think that that is prima facie evidence of an intention. Moreover, I cannot accept the interpretation of the substantive part of the section which would require that the landlord must desire to sell the premises or to obtain possession for occupation by himself or any member of his family before the section becomes operative in any case. I think the words following "and in particular" are merely an instance of cases where the duration of the tenancy can be agreed between the parties.

4. That being so, I am satisfied that no question of protection under the Landlord and Tenant Ordinance could follow upon the termination of this agreement. There was then a second lease for a further period of five years and one month from 1st September 1976. That lease, which did not refer expressly to the roof, contained a similar, although not identical, provision. In my view the provision is in terms which are sufficiently similar to oust the protection of the Ordinance and accordingly the Tenant had no protection of any kind after the expiration of the second agreement. He pleads no other right to protection and it seems to me that he has no right to remain in possession.

5. It is argued that the landlord has equally no right to sue, but once the protection of the Landlord and Tenant Ordinance is ousted it seems to me quite clear that the landlord did have a sufficient interest in the property to entitle him to bring an action.

6. I therefore think that the judge came to the right conclusion and I would dismiss this appeal.

Kempster, J.A :

7. The title of the Plaintiffs was assuredly established by an assignment dated 19th July 1982 which was duly registered. The protection which the Defendant sought was pursuant to s.17 of Part I of the Ordinance and, like my lord the Vice-president, I take the view that, in the absence of evidence in rebuttal, no clearer indication of the Tenant's intention to deprive himself of that protection could be provided than appears in the relevant clauses of the two leases. I therefore agree that the judgment of Miss Chan, sitting as a Deputy District Judge, granting the Plaintiffs a declaration, an order for possession and an injunction as claimed in the prayer of the Re-Amended Particulars of Claim should stand and the appeal be dismissed.

Power, J.:

8. I concur with all that's fallen from my Lord the President and from my brother Kempster and have nothing to add.

14th March 1986

Representation:

Rupert Spicer for Appellant.

Patrick Fung for Respondent.