Yam Kar on v. Yu Kwok Keung

CACV000080/1982

Landlord and tenant - claim for possession - s.53(2)(d) of Landlord & Tenant (Consolidation) Ordinance - "inconvenience" to landlord caused by persistent failure to pay rent - warning in writing served - one further late payment thereafter could constitute a continuance of the inconvenience.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Silke & Barker, JJ.A.

Date of hearing: 24 September 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. In this case the Appellant, who is the tenant, appeals against an order of a District Judge ordering possession of premises. The order was made under s.53 (2)(d) of the Landlord and Tenant (Consolidation) Ordinance, which read :

"The Court shall not make an order for possession of premises in respect of which there is a tenancy or sub-tenancy to which this part applies, unless it is satisfied that (d) the tenant or the sub-tenant has caused unnecessary annoyance, inconvenience or disturbance to the landlord or the principal tenant, or to any other person;

Provided that no order shall be made under this paragraph unless the Court is satisfied that the annoyance, inconvenience or disturbance had continued after a warning in writing had been served by the landlord or principal tenant on the tenant or sub-tenant causing the same."

2. In the present case the allegation was one of inconvenience and it is common ground that a warning notice was given of late payments of rent. Under sub-s. (2A) persistent failure to pay rent may be regarded as causing unnecessary inconvenience to a landlord. The Tenant failed to pay rent promptly and in fact at the time of the warning notice was three months in arrears. Upon receipt of the notice the Tenant paid the arrears, but he failed to pay the next rent when it fell due.

3. The argument for the Tenant, both before the District Judge and before us, has been that after the warning notice there must be persistent failure to pay rent - persistent in itself: otherwise, it is said, there is no continuance of the inconvenience.

4. The learned judge summarised the arguments in these words:

"It is Mr. Collins' contention that the defendant, having discharged the alleged arrears demanded by the warning letter, did not thereafter continue the alleged unnecessary inconvenience, in the form of persistent failure to pay rent, merely by failing to pay one month's rental. An isolated failure to pay rent could not amount to persistent failure to pay rent, and could not constitute continuation of the unnecessary inconvenience required by section 53(2)(d) of Cap. 7. Section 53(2A) must be read together with section 53(2)(d), and the reference to "the ...., inconvenience ..." in the proviso must mean conduct which amounts to unnecessary inconvenience", which, in the present context means persistent failure to pay rent after the written warning.

Miss Sze sought to meet these contentions by arguing that a failure to pay the rent due immediately after the service of the warning letter was a continuation of the prior "unnecessary inconvenience" even though it might fall short of a persistent failure to pay rent, and even though the tenant had, so to speak, "abated" the prior "unnecessary inconvenience" in the form of persistent failure to pay rent, by paying the arrears demanded by the warning letter."

5. The learned judge took the same view as another District Judge took in Fung Woo v. Wong Shing, District Court Civil Jurisdiction Action 1979 No. 4524 and in my view the Tenant's argument cannot be sustained. What the proviso says is not that there must be repetition of inconvenience but that there must be continuance of inconvenience. The learned judge said that he thought one had to consider the subsequent late payment after the warning in the light of the previous late payments and not by itself. I agree with that and therefore I would dismiss this appeal.

Silke, J.A.:

6. I agree and there is nothing I can usefully add.

Barker, J.A.:

7. I agree also.

Representation:

P. Cheung (Director of Legal Aid) for Appellant.

Miss Sze Kin (Au & Wong) for Respondent.