Shek Yee Wan and Another v. Leuhg Hui and Others

CACV000040/1982

Landlord & tenant - claim for possession on ground that premises required for occupation as a residence for some of plaintiffs' children over age of 18 years - plaintiffs' claiming as personal representatives of deceased lessor - as such they had received rent - they were landlords for purposes of s.53(2)(b) although not beneficially entitled to estate of deceased lessor.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Macdougall and Hunter, JJ

Date of hearing: 29 April 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This case had a somewhat chequered career before the lower court. Proceedings were brought by two Plaintiffs in their own capacity claiming possession of a flat in Shaukeiwan on the basis of s.53(2)(b) of the Landlord & Tenant Consolidation Ordinance: it was said that the Plaintiffs required the premises for occupation as a residence for some of their children. The Particulars of Claim were amended and re-amended and at the date of the hearing the proceedings consisted of a claim by one only of the original Plaintiffs, but at the hearing application was made for leave for an order giving leave to amend further. This was granted but the amendment was not in fact made. We have without opposition granted an extension of time for those amendments to be made since the trial proceeded on the assumption that they had been made.

2. The two Plaintiffs are the personal representatives of a deceased landlord. They are the widow and the eldest son The whole family at present lives together but it is sought to obtain possession of the suit premises so that some of the family may break away. The learned judge came to the conclusion that the Plaintiffs were not landlords within the meaning of s.53(2)(b).  He came to that conclusion because he said there was no evidence before him that they were beneficially entitled to the rents or to the premises.   The deceased had died in 1971.  Since then the two Plaintiffs had been receiving the rent.  The rent was paid by the 1st Defendant who had sublet to the other Defendants of the premises. The claim, as amended, is by the Plaintiffs as personal representatives and it is common ground that as personal representatives they had been receiving the rent from the 1st Defendant. The argument that only a personal representative who was beneficially entitled to the property was a landlord for the purposes of s.53(2)(b) was based upon the case of Sharpe v. Nicholls 1945 1 K.B. 382. That case was subsequently considered in Patel v. Patel 1981 1 W.L.R. 1341, where it was decided that the earlier decisions had been misunderstood: they had not been decided on the basis that the personal representatives were not landlords: what had been held was that the premises were not reasonably required by them for occupation by a person mentioned in s.53(2)(b). In my view Mr. Yu is right and there is really no satisfactory argument for the proposition that these personal representatives are not within the definition of landlord in s.49 of the Ordinance. They have been in receipt of the rent. Section 49 defines "landlord " as follows:

" 'Landlord' includes any person other than the Crown who is from time to time entitled to receive rent in respect of any premises and in relation to a particular tenant means a person entitled to receive rent from such tenant.

That definition under s.49 applies, unless the context otherwise requires, to s.53(2)(b). In spite of the argument to the contrary I can see no ground for saying that the context otherwise requires. In my view, on the plain words of the statute, these personal representatives were a "landlord".

3. That is sufficient to decide the case in favour of the Appellants, for the learned judge went on to say that, although it was not necessary for him to decide whether the Plaintiffs reasonably required the premises for occupation as a residence for the persons named, if he had to decide it he would decide it in their favour. He further said that he was not satisfied that it would have been manifestly unjust or inequitable to make an order for possession. That being so there is nothing else left to be decided and in ray judgment an order for possession must be made.

Macdougall, J. :

4. I agree.

Hunter, J. :

5. I agree.

29th April 1982.

Representation:

B. Yu (John Ku & Co.) for Appellant.

J. Lee (Sit, Flung, Kwong & Co.) for 1st, 3rd and 5th Respondents.

2nd Respondent in person.

4th Respondent not appearing.