Lam Chun Kuen v. Wan Suet Ying

CACV000047/1981

Landlord and tenant - application to strike out claim by landlord for possession under s.53(2)(b) of Landlord & Tenant (Consolidation) Ordinance - contract for three year tenancy - claim lodged within three months before expiration of agreed term - order could be limited to take effect after expiration of agreed term - good cause of action.

Dates of hearing: 11th and 26th June, 1981

D. Chang, Q.C. & W. Chan (Tsang, Chau & Shuen) for Appellant.

Miss J. Leong (P.H. Sin & Co.) for Respondent.

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

Date of Judgment: 26th June, 1981

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. By leave of His Honour Judge Souyave the defendant tenant appeals against the dismissal of his application to strike out a claim for possession on the ground that it discloses no cause of action.

2. The writ was issued on 31st December 1980 and the facts alleged were that the Respondent let to the Appellant a flat for a term of 3 years from 15th March 1978 and that she required the flat for occupation as a residence for herself "and her family". Only two days before the hearing of this appeal in Chan Sun Chiu v Ma Man 1981 Civil Appeal No. 44 we had occasion to criticize this form of pleading. There will still be an opportunity to amend the particulars of claim to indicate which relative or relatives within section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance are intended.

3. The contention on behalf of the tenant is that during the three years of the term originally agreed it was not open to the landlord (1) to obtain possession under this paragraph or (2) even to institute proceedings for possession under it. At the first hearing before the learned Judge he accepted that contention, but upon a review his attention was drawn to the decision of this Court in Lo Wah v Chui Fun 1980 Civil Appeal No. 152 and he reversed his decision.

4. Before us Miss Leong on behalf of the landlord has conceded that any order that possession be given under section 53(2)(b) before the expiration of the three years would be wrong and that any proceedings in which any order made would inevitably have to take effect during the three year term ought to be struck out. Her argument is that under section 53(4) the Court may direct that an order for possession shall come into effect at any time within three months from the date on which it is made. Therefore, she says, provided that the proceedings are commenced not more than three months before the date on which the three years will expire, so as to ensure that any order for possession which may be made can be made to take effect after that date, the action should not be struck out: the real cause of action under this provision cannot arise until the hearing of the action, for it is at the date of the hearing that the reasonable requirement of possession must exist.

5. For the tenant, Mr. Chang submits that it would be wrong to subject a tenant to proceedings for possession before the landlord is entitled to an order which will have immediate effect. For my part I do not see that the tenant is prejudiced. If he is prepared to admit the claim of the landlord provided only that he is not required to give up possession until the agreed term has expired, he can so inform the landlord. Even if the landlord is not prepared to accept the tenant's word that he will give vacant possession, and institutes proceedings, the tenant can inform the Court of his intention to give up possession and need not further contest the proceedings. The effect of upholding the tenant's argument, of course, would be that the tenant could never be evicted, for the purposes of the landlord's taking possession for occupation for himself or one of his specified relatives, until some time after the expiration of the term agreed, for there is inevitably a delay between the bringing of the action and the making of an order for possession, even disregarding the likelihood that the order for possession will be made to take effect at a later date. This delay was not considered a fatal objection under the English Rent and Mortgage Interest Restrictions Acts, for it was always necessary there to terminate the contractual tenancy before possession could be claimed under paragraph (h) of the First Schedule of the 1933 Act. As against that it must be noted that there was no equivalent of our section 53(4). The cause of action must exist at the date the writ is issued, that is to say one must enquire whether, if the action were tried on that very date, the plaintiff would be entitled to the order he seeks. Here the plaintiff is not seeking an order for immediate possession but an order for possession upon the expiry of the three years: she says that, on the day on which she brought her action, she was entitled immediately to an order for possession on 15th March 1981.

6. It was not argued that, even if the action could be instituted before the end of the agreed term, at least no order for possession could be made until the term has expired. That view would have the merit that the landlord would not have the opportunity, after the making of the order but before the expiry of the term, to change his mind about requiring the premises. However, the tenant is always protected against any change of mind by section 53(7) and (8). The basis of the argument on behalf of the tenant was that one must respect the contractual bargain made by the parties. Assuming that to be so, as is conceded, I do not see how the contractual bargain is interfered with in any way if the order for possession is so drafted as not to take effect until after the expiration of the agreed term.

7. In my view the landlord was entitled to bring his action when she did and the appeal should be dismissed.

Leonard, J.A.:

8. I agree and for the reasons stated.

Cons, J.A.:

9. I also agree.

26th June 1981.

Representation:

D. Chang, Q.C. & W. Chan (Tsang, Chau & Shuen) for Appellant.

Miss J. Leong (P.H. Sin & Co.) for Respondent.