Chan Sun Chiu v. Ma Man

CACV000044/1981

Landlord and tenant - landlord requiring possession for occupation by sons over age of 18 - Statement of Claim wrongly claiming possession "for self occupation as a residence for herself and her family" - two clansmen living with tenant - such persons that hardship to them could be hardship to tenant - their ability to contribute to expenses must be considered.

Date of hearing: 9th June, 1981.

K. Kwok (Louis Kong & Co.) for Appellant.

P. Cheung (Cheung & Tong) for Respondent.

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

Date of hearing: 9th June, 1981.

Date of Judgment: 9th June 1981.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal pursuant to leave granted by the learned trial judge. The claim is made under Part II of the Landlord and Tenant (Consolidation) Ordinance and the particulars of claim alleged that the Plaintiff required possession of premises "for self occupation as a residence for herself and her family". It was proper to claim that she required to occupy for herself. There is no ground upon which she can claim possession "for her family". The Ordinance specifies the relatives for whom possession may be claimed. In the event it appeared that she did not require the premises for herself at all, but she did require them for two sons over the age of 18. Those are persons who are specified in the Ordinance and no point has been taken as to the inadequacy of the Statement of Claim.

2. The only issue which has been fought out has been as to the application of the proviso to section 53(2)(b) which says that the Court shall not make an order if the tenant proves that it would be manifestly unjust so to do. The Judge concluded that it would be unjust and he seems to have based his decision solely upon the hardship resulting to the tenant by reason of his being unable to afford alternative accommodation. Difficulties arise from the lack of clear findings and from the unsatisfactory record of the evidence, and also from the form of the Notice of Appeal. Many of the questions and answers noted by the Judge make nonsense, and vital questions have not been asked. We take this opportunity to say that, where the whole or part of evidence is recorded in question and answer form, the Court should be entitled to assume that it is in the ipsissima verba of the witness. The better course is to record the evidence in narrative form and to use the question and answer form only where the ipsissima verba are material: in his well known book "The Magistrate" (2nd Edition) Sir Alison Russell says at p.43:

"The evidence given by witnesses should be recorded by the magistrate in narrative form, but occasionally it may be found desirable to record in full a special question and its answer."

3. The Notice of Appeal, even as amended, does not indicate clearly the substantial point which has been advanced in argument. This substantial point is that the Judge erred in his approach to the evidence that part of the premises which were the subject matter of the tenancy was occupied by persons who were said to be clansmen of the tenant. The Judge found himself unable to decide the precise relationship between them and the tenant, but there was evidence that they were related to his divorced wife. The evidence was conflicting as to how much of the premises they occupied: the tenant said that it was one room and his mother-in-law said that it was two rooms. The Judge did not resolve this doubt. Counsel for the Appellant puts his argument in the alternative: first, he says that the Judge was wrong to have regard to any hardship to the two clansmen in deciding whether it would be manifestly unjust to make an order of possession. If that be wrong, he says, the Judge was wrong when he found that the financial consequences to the tenant would be "horrendous" as he would be subjected to paying rent at much the same level as his total earnings.

4. As to the first argument there is clear authority to the contrary. In dealing with another, although related, proviso Asquith, L.J. said in delivering the judgment of the court in Harte v Frampton 1948 1 K.B. 73 at p.79:

"To attempt to define classes, hardship to whom and to whom alone (apart from the parties) can be taken into account (whether as an element entering into the party's hardship, or on its own account) appears to us an unhelpful line of approach to the construction of the proviso. The true view, we think, is that the county court judge should take into account hardship to all who may be affected by the grant or refusal of an order for possession - relatives, dependants, lodgers, guests, and the stranger within the gates - but should weigh such hardship with due regard to the status of the persons affected and their 'proximity' to the tenant or landlord, and the extent to which consequently, hardship to them would be hardship to him. The inability to take in a guest for the week-end would no doubt be assessed by the judge at nil. The extrusion of a loved and trusted relation, whether dependent or not, would weigh heavily in the scales."

This is applicable to the present case and the Judge was bound to have regard to all those living in the tenant's premises, including the clansmen.

5. The alternative argument encountered difficulty because of the lack of clear findings as to (i) the earnings of the tenant and those associated with him and (ii) the rent which would be payable for comparable alternative accommodation. The Judge said that "essentially" he accepted the evidence of the tenant. There were matters which threw considerable doubt on his credibility and which the Judge did not deal with very satisfactorily, especially the fact that the Judge found his outgoings to be $3,300 p.m. However, I think we must accept that the tenant himself was earning "about $2,400" p.m. His own evidence was that he had been able to find alternative accommodation only at a rent of $2,500 p.m. It has been argued that this accommodation was not the only suitable accommodation available, but again I think we must accept for present purposes that the Judge thought it was. Where, in my opinion, the Judge fell into error was in not having regard to the income of the clansmen, for if he had done so he could hardly have concluded that the financial consequences would be horrendous. The clansmen were each earning at least $1,000 p.m. The tenant said later that their combined earnings were $3,000, and if the combined earnings were anything approaching that sum then the proportion payable as rent no longer appears horrendous. It was said that the clansmen had to remit money to a relative in mainland China, but the evidence as to that is vague in the extreme.

6. The onus was on the tenant to establish manifest injustice and, with respect to the learned Judge, I do not think there was evidence upon which the tenant could successfully discharge that onus. I would allow the appeal, make an order for possession and grant a stay of execution for 3 months.

Leonard, J.A.:

7. I agree and have nothing to add.

Cons, J.A.:

8. I agree that the appeal should be allowed and for the reasons given by my Lord President, and in particular I would associate myself with and emphasize the comments made as to the manner in which the evidence should have been recorded in the Court below.

9th June 1981.

Representation:

K. Kwok (Louis Kong & Co.) for Appellant.

P. Cheung (Cheung & Tong) for Respondent.