Ma Hon v. Andy Mahtani

CACV000038/1981

Landlord and tenant - claim by landlord for possession for occupation by herself - landlord owned two other flats - evidence that suit premises suitable to landlord's needs - fact that landlord spent long periods abroad did not prevent their being reasonably required - no obligation on landlord to buy or rent other accommodation because she could afford to do so - fact that tenant would be evicted not material to question whether landlord reasonably required them for her own occupation.

Date of hearing: 17th June, 1981

Miss M. Yuen (Fairbairn & Kwok) for Appellant.

E.C. Mumford (H.H. Lau & Co.) for Respondent.

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Coram: Sir Alan Huggins, V.-P., Leonard and Li, JJ.A.

Date of hearing: 17th June, 1981

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is a claim for possession of premises which are controlled under Part II of the Landlord and Tenant (Consolidation) Ordinance, on the ground that they are required "for occupation as a residence for herself and her family."

2. We have on two previous occasions in the past week had to draw attention to the fact that this is not a proper ground of claim. The evidence, however, in this case was that the Appellant wanted the premises for herself only. It is true that the learned Judge does refer in his judgment to an answer to a question by him at p.31 of the record:

The Judge in his judgment said:

"It was only in answer to a question from me at the very end of her evidence that she mentioned making a home for one other person - her stepson, who is presently overseas. The stepson is in his own right, the registered owner of a flat at Mei Foo Sun Chuen Estate, which is currently rented out. The mention of her stepson as a possible dwelling companion was very obviously an afterthought by the plaintiff. I find as a fact that her intention, if granted possession of the suit premises, is to occupy it on her own, with of course such domestic servant (s) as she may wish to employ. Apart from the afterthought to which I have just referred, there is no evidence whatever that the plaintiff wishes to set up home with her stepson or a fortiori, that he has any intention of living with the plaintiff."

In fairness to the Appellant I think it should be said that she never sought to claim in respect of the stepson and that her "afterthought" was the result of a question which, in my view, should never have been asked.

3. The Judge dealt first with the issue whether it would be manifestly unjust and inequitable to make an order for possession. With respect to him I think it is more logical to consider first the question whether there was any ground for making an order. However, he was satisfied that it would not be unjust or inequitable, and possibly nothing turns upon this.

4. As I understand him, the Judge thought that the Appellant did require the premises, and reasonably required a flat which was comparable to those premises, but he came to the conclusion that it was not reasonable to require this flat because (1) it would involve evicting the Respondent and his family, and (2) she had means to buy other accommodation.

5. In my judgment the learned Judge must have attached some weight to the fact that to make an order for possession would result in the eviction of the defendant and his family. He said:

"The plaintiff requires only accommodation befitting a single lady with slightly below-par health. There are a number of ways in which she could achieve this, without evicting the defendant and his family."

Mr. Mumford is forced to contend that the words "without evicting the defendant and his family" are mere surplusage and are not material to the judgment. I do not think that that can be so. It seems to me clear that the learned Judge was bearing in mind the effect on the Respondent, and I do not think that that was a relevant consideration: see Sloane v Cooke (1919) 53 Ir.L.T. 209.

6. Secondly, it is contended that the Appellant goes out of the Colony for fairly long periods in the year and therefore she did not require reasonably these premises: moreover, she has not tried to find alternative accommodation. The contention which Mr. Mumford has put before us, in effect, is that for the words "reasonably requires" one must read the words "sensibly requires". That is not what the Legislature has said and I do not think that anything is to be gained by substituting one word for another. The fact that the lady is out of the Colony for long periods does not seem to me to be relevant. The question is Does she reasonably require them for the time when she is within the Colony? Even assuming that she had means to buy other accommodation - it is submitted that there was no evidence as to this but I think perhaps Mr. Mumford may have a point when he says one can assume that it is possible to buy accommodation for a single woman or to rent accommodation for a single woman for about $1,000 p.m. - I do not think that it is relevant to the issue whether she reasonably requires possession of the suit premises.

7. The Appellant owns this and two other flats. Why should she be required to buy another? Had one of the properties which she at present owns been vacant, that might have been a material factor, but the position is that all her properties are occupied. She has selected the suit premises as her home. I find nothing in the judgment which suggests that the learned Judge did not consider these premises to be suitable to her needs or that she did not require those premises. The sole question is whether she reasonably requires them. I adopt with respect the comments of Stephenson, L.J. in Kennealy v Dunne 1977 1 Q.B. 837 at p.844F:

"The position seems to be that for a dwelling house to be reasonably required it must be the subject of a genuine present need on the part of the landlord. That was the view of the Sheriff in a Scottish case of Aitken v Shaw, 1933 S.L.T. 21, which is cited both in Woodfall, Landlord and Tenant, 27th ed. (1968), vol. 2, p.1545, and in Megarry, The Rent Acts, 10th ed. (1967), vol. 1, p.284: "The words 'reasonably required'" - said Sheriff Blades K.C., in that case - 'connote something more than desire, although at the same time something much less than absolute necessity will do.' The tenant's position where an order for possession is sought against him under the present Case 8 cannot, I think, be better put than it was in the same work by the same author at p.285 of the same volume:

As I see it there was here no evidence upon which the Judge could come to the conclusion that the requirement of the Appellant was not reasonable.

8. For these reasons, I would allow the appeal and make an order for possession.

Leonard, J.A.:

9. I agree and, beyond saying that I think the illogical approach of the learned Judge in first deciding the question raised by the proviso and then attacking the central question which he had to decide was an error which may well have led him to come to the wrong conclusion, I have nothing to add.

Li, J.A.:

10. I also agree. I do not say anything as I have nothing more to contribute and nothing more to add.

17th June, 1981

Representation:

Miss M. Yuen (Fairbairn & Kwok) for Appellant.

E.C. Mumford (H.H. Lau & Co.) for Respondent.