Ho Cheung Hing v. Li Tat Chi

CACV000037/1981

Coram: Sir Alan Huggins, V.-P., Zimmern and Barker, JJ.

Date of Judgment: 21st July 1981.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This was an application for possession on the grounds that the Plaintiff required the premises for occupation by herself and her husband. She was aged 61 and she said that her husband was sick. She herself has been living in premises supplied by a previous employer. She was given them as a temporary measure until she could recover her own premises. In return for some slight services she was given free board and lodging and a little pocket money. The learned Judge found that she did not reasonably require the premises for her own occupation, but also said that if he had come to a contrary conclusion on that point he would nevertheless have thought that it was manifestly not just and equitable to make an order for possession.

2. The judgment is very short. Whilst I would not criticise brevity as a rule, we are in some difficulty in understanding why the learned Judge was not satisfied that the Plaintiff reasonably required the premises. It seems that he found the Plaintiff to be less than frank, but the only indication as to why he thought she was less than frank was that she had made several "false starts" in her evidence. There seems to have been some confusion in the Plaintiff's mind as to how she should answer the question concerning her address. For my part I find it very difficult to support the finding that the Plaintiff did not reasonably require the premises. She was in temporary accommodation. She could keep that only so long as she worked. She was aged 61 and her husband was older than that and she may very reasonably have wished to retire. The Judge said that the Plaintiff "represented herself" to be an old woman with a sick husband, but he does not say that he disbelieved that evidence. It would not be unreasonable for a woman of that age to wish to look after her sick husband in her own premises.

3. Once one comes to the conclusion that the finding on the first matter is suspect the finding on the second also becomes suspect; it is difficult to see why it would manifestly not be just and equitable to make an order for possession. The only reason suggested in the judgment is that the Defendant had made genuine efforts to find alternative accommodation. That itself is not sufficient in my view.

4. The conclusion which I had reached is that this appeal ought to be allowed but that there ought to be a re-trial. This will have the added benefit that the Defendant will be able to give some evidence which was not available at the time of the trial. Four days after the trial it was diagnosed that he had tuberculosis. This is obviously a matter which will affect the just and equitable point. I think the matter ought to be reconsidered in the light of all the evidence which can be adduced.

Zimmern, J. :

5. I also agree that the appeal should be allowed and there ought to be a re-trial.

Barker, J. :

6. I agree and there is nothing I can usefully add.

21st July 1981.

Representation: