Bulistock Ltd v. Yu Lam Ying

CACV000080/1983

BETWEEN

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Coram: Yang & Barker, JJ.A., & Kempster, J.

Date: 27th October, 1983

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JUDGMENT

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1. This is an appeal from a judgment of Hooper, J. given on the 27th May of this year whereby he made an order for possession of the ground and mezzanine floors of premises known as No. 83 Ha Heung Road, Kowloon.  The only issue which arises before us is whether or not the learned judge correctly concluded that the primary user at the material time was for business purposes./ The material time was held to be the date of service of notice of termination given pursuant to section 122 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 namely the 29th March 1982. This finding is not challenged. No more is the finding that the Certificate of the Commissioner for Rating and Valuation, that the user on the 27th of April 1982 was non-domestic, was to be regarded as. prima facie evidence of user on the 29th of the preceding month; thereby placing the burden of proof on the appellant to show, on the evidence as a whole, that the primary user at the material time was in fact domestic. The terms of section 51(6) of the Ordinance render this accord hardly surprising.

2. As to the evidence before the learned judge his notes are not reproduced for the purposes of this appeal and we therefore rely on the evidence recounted in his judgment. It appears to have been common ground that the ground floor, 75.2 sq. m. in size, was used both as a shop for selling electrical goods and for the conduct of a catering business as well as for relevant storage. There was evidence too, which it appears that the learned judge accepted, that some domestice cooking took place in the ground floor kitchen.

3. As to the mezzanine floor, called "the cockloft", which was some 70.2 sq. m. in size, it appears that the user was entirely for domestic purposes. On this basis it is submitted by Mr. Hingorani on behalf of the appellant that the premises became no less the home of the appellant because of the business activities just described than was the case of the tenant on whose premises a sewing business was carried on as described in Shirlien Light v. Wan Bing Wong;⁽¹⁾ particularly at page 151. However, the last sentence of the first paragraph of paragraph 8 of the judgment reads:

"Any person looking at the premises would, I think, have no hesitation in saying that they are primarily business-premises".

4. In the circumstances I am, for my part, unable to hold that the facts disclosed to Hooper, J. were parallel to those put before Mills-Owens, J. in the Shirlien Light case. The learned judge was in an unrivalled position to assess and gauge the effect of the evidence and the relative users. He had both the relevant submissions as to authority and the provisions of section 51(3)(a) of the Ordinance well in mind.  I see no basis for faulting his conclusion that the burden of proof agreed to rest upon the appellant was not discharged and, therefore, that the service of notice of termination had the desired effect. For all these reasons I would dismiss this appeal.

Yang, J.A.:

5. I would also dismiss this appeal for the reasons given by my brother Kempster.

Barker, J. A. :

6. I agree.

(1)    (1971) H.K.L.R. 145

Representation:

Jeevan Hingorani (H.M. So & Co.) for appellant/defendant

Peter Cheung (Woo, Kwan, Lee & Lo) for respondent/plaintiff