Sing Hing v. Inland Realty Ltd

CACV000041/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.39 OF 1973

(On appeal from K.C.J. 2615 of 1973)

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CIVIL APPEAL NO.40 OF 1973

(On appeal from K.C.J. 2616 of 1973)

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CIVIL APPEAL NO.41 OF 1973

(On appeal from K.C.J. 2623 of 1973)

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CIVIL APPEAL NO.42 OF 1973

(On appeal from K.C.J. 2624 of 1973)

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 11th December, 1973.

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JUDGMENT

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1. There is a point which is common to all these appeals and they have consequently been heard together. In each case the learned District Judge made an order striking out the appellant defendant's Defence and directing that possession of the premises respectively let to the Appellant be given up. It is against these orders that the appeals are brought. I shall refer to the Appellants as "the Defendants" and to the Respondents as "the Plaintiff".

2. The Defendants each took a tenancy of a flat in a house in Sai Yeung Choi Street, Kowloon. The plaintiff company was the landlord and claimed possession on the basis of a Notice to Quit in the form contemplated by s.9(1) of the Tenancy (Notice of Termination) Ordinance (now s.125(1) of the Landlord and Tenant (Consolidation) Ordinance). Actions were brought. The Statements of Claim alleged that the premises were let for business use and recited the notices to quit, but did not allege that the Plaintiffs intended to rebuild the building and were capable of so doing. The Defendants, who in the court below were not professionally represented, each filed a Defence which did not attempt to deal with the allegations in the Statements of Claim but, in effect, pleaded hardship. The Defendant in Civil Appeal No. 39 of 1973 also alleged that his premises were let for domestic use. The Plaintiffs took out summonses to strike out the Defences and at the hearings the Defendants merely advanced submissions of hardship. Thereupon the learned judge made the orders already mentioned.

3. With respect to the learned judge there would in Civil Appeal No. 39 of 1973 appear to have been a clear issue raised, whether the premises were business or domestic premises. However, on the appeal counsel for the Defendants has chosen to base his argument on the point which is common to all four appeals, namely that there was no evidence upon which the judge could have been satisfied that the Plaintiffs intended to rebuild and were capable of so doing. At first counsel attacked the orders on two grounds, (1) that there was no ground for striking out the Defences and (2) that in any event a necessary condition for the making of the orders for possession had not been fulfilled. In the event he did not press the first of these grounds for, as he conceded, his argument involved the contention that the Statements of Claim themselves were defective and revealed no cause of action. I confess that I would have been loth to adopt his submission that a mere statement in a tenant's defence that he did not want to give up possession would be sufficient to entitle him to rely at the trial upon any defence which, if fully pleaded, would be open to him. It was manifest that the Plaintiffs were admitting that unless they could bring themselves within s.125 of the consolidating Ordinance they could not recover possession: in particular s.122 would have required them to serve notices not less than six months before the date on which such notices were to take effect. That was why the Plaintiffs pleaded the Notices containing statements of their intention to rebuild. However, s.125(3) allows the District Court to make an order for possession "where it is satisfied" that the landlord intends to rebuild and is capable of so doing. It is implicit that where the court is not so satisfied it may not make an order for possession. That being so, counsel argues, the intention to rebuild and the capability of so doing were material facts which it was necessary for the Plaintiffs to plead and without proof of which no orders for possession could lawfully be made. Had the Plaintiffs alleged these facts failure to deny them might, he said, have been a tacit admission of them, but since they were not alleged by the Plaintiffs it was not for the Defendants to deny them. From there counsel went on to argue that whether or not the Defences were struck out no orders for possession should have been made.

4. Counsel for the Plaintiffs did not wish to contest the appeals but has agreed that they should be allowed with an order by consent for payment by the Plaintiffs to the Defendants of a sum of $2,500 by way of costs to cover all four appeals. I agree that the orders for possession cannot be supported and I would make an order in the terms just stated. The cases will have to go back to the learned District Judge for trial. We have not been asked to give any directions concerning pleadings, but presumably both sides will wish to amend.

11th December, 1973.

Representation:

H.Y. Leung (P. Mo & Co.) for respondent