Allied International Insurance Ltd v. Hsia Jone Shu and Another

CACV000081/1981

Headnote

Joint landlords may only succeed under Section 53(2)(b) of the Landlord & Tenant (Consolidated) Ordinance where they jointly fulfill the occupational requirement.

McIntyre v. Hardcastle [1948] 2 K. B. 82 and Wetherall v. Stone [1950] 2 All E. R. 1209 followed.

BETWEEN

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Coram: Hon. Leonard, V. P., Cons & Zimmern, JJ. A.

Date: 8 January 1982

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JUDGMENT

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Cons, J. A.:

1. The question for our decision is a short one, "Can joint landlords, who happen to be father and son, recover possession under Section 53(2)(b) of the Landlord and Tenant (Consolidated) Ordinance when the premises are required for occupation only by the son." The learned District Judge below came to the conclusion that they could. The tenant now brings this appeal.

2. Counsel on his behalf argued that the point has already been decided in McIntyre v. Hardcastle ⁽¹⁾ where Tucker L. J. in the English Court of Appeal adopted an earlier dictum of Asquith L. J. in Baker v. Lewis ⁽²⁾. The passage will be easier to follow if I set out the essence of the English legislation : -

"A court shall have power to make an order for possession of any dwelling house if - (h) the dwelling house is reasonally required by the landlord for occupation as a residence for (i) himself; or (ii) any son or daughter of his over 18 years of age; or (iii) his father or mother."

3. Lord Asquith said this⁽³⁾ :-

"This court has decided, in Owen v. Overy that 'landlord' in para. (h) of the first schedule to the Act of 1933 covers two or more joint beneficial owners, and in Sharpe v. Nicholls that it does not cover two or more bare personal representatives. Where there are two or more joint beneficial owners, I would incline to a construction of (h) narrower than that put forward or kept open, by my brother. In the event (i), (ii) and (iii) of (h) should, I think, be read as follows in (i) for 'himself' read 'themselves'; in (ii), for 'any son or daughter of his' read 'any son or daughter of theirs', and in (iii), read 'their father or mother'. Where, read in this way, neither (i), (ii) nor (iii) has any application, such beneficial owners would fail - for instance, if they proceed under (ii) and are not a married couple with a child, or if they proceed under (iii) and have not got a parent in common; but they would fail in that case not because there are several of them or because they are not a 'landlord' within the opening words of the section, but because they could not bring themselves within the language of (i), (ii) or (iii), construed in the way I suggest. I agree with the proposed order,"

4. The decision in McIntyre ⁽¹⁾ was followed by the District Court in Sun Pin & Another v. R. F. Greenwood ⁽⁴⁾, where the landlords were husband and wife, but the son for whom the flat was required was the son of only one of them; and again in Wong King Fun & Another v. Chan Hon Tau ⁽⁵⁾, where there were two brothers only one of whom wanted to use the premises.

5. Had the authorities rested there I think it might have been possible to argue for a construction favourable to two joint landlords where each landlord could bring himself within one or other of the terms of the legislation, albeit not the same term. It is to be noted that in the facts of McIntyre ⁽¹⁾, and in the examples given by Asquith L. J., one of the landlords is in each case left out in the cold. However precisely that situation arose in Wetherall v. Stone ⁽⁶⁾, again in the English Court of Appeal and on this occasion containing Sommervell L. J. who had earlier expressed some reservations on this legislation.⁽⁷⁾ The case turned upon different legislation, but the wording was almost precisely the same. McIntyre was accepted and applied without question.

6. Counsel before us for the landlord attempted to distinguish Wetherall v. Stone ⁽⁶⁾ by reference to the words "or, where the landlord is an individual" in the legislation there under consideration, and which reads : -

"If the landlord proves - (i) that the premises are required for occupation by himself, or, where the landlord is an individual, for occupation by a son or daughter of his over eighteen years of age."

For my part I cannot see that the inclusion of these words makes any difference.

7. The learned Judge below relied heavily upon the House of Lords decision of Tilling v. Whiteman⁽⁸⁾. However the order there was made under case 10 of schedule 3 to the Rent Act of 1968, whereas McIntyre ⁽¹⁾ was decided upon what is now case 8 and in which the wording is different. This was emphasised in all the speeches of their Lordships, including that of Lord Fraser of Tullybelton who dissented from his brethren. The case can therefor provide no assistance.

8. The learned Judge below declined to follow the English Court of Appeal, as I understand him, for three reasons :

(a)     the legislation was not identical;

(b)     he was not bound by those decisions;

(c)     there had been major amendments to Section 53(2)(b) in 1980.

9. As to (a) he does not indicate precisely what he had in mind. I have set out the essence of the English legislation earlier. That of ours is as follows : -

"A court shall not make an order for possession of premises unless it is satisfied that - the premises are reasonably required by the landlord for occupation as a residence for himself, his father, his mother or any son or daughter of his over the age of 18."

10. I appreciate that the Hong Kong draftsman has changed the format of the English text, but I fail to detect any variation in its effect.

11. As to (b) the Judge is technically correct. The relevant authority is now De Lasala v. De Lasala ⁽⁹⁾. Nevertheless, for myself I take the view that in this jurisdiction, where our law and practice is so much one and the same as that of England, it is desirable as a general principle that Courts of first instance should follow a decision of the English Court of Appeal unless there have been clear indications that this court would take a different view or unless of course there are crucial differences in the legislation or in the local circumstances.

12. The major amendments to Section 53 to which the learned Judge was referring with regard to (c) were the removal of the bar upon landlords who became soon or after 15th December, 1973, and the replacement of the "greater hardship test" by a burden on the tenant o show that eviction would manifestly not be just and equitable in the circumstances. Whereas I agree that the cumulative effect of these amendments is a strong indication of the legislature's intention .............................. to improve the position of landlords" I do not see how it relates to the question of joint ownership. In that respect the amendments do not alter the landlord's position in any way.

13. A provision of this kind was first enacted in 1947 in Section 23 of the Landlord and Tenant Ordinance. McIntyre ⁽¹⁾ was decided soon afterwards and followed two years later in England by Wetherall v. Stone ⁽⁶⁾ and then in Hong Kong by Sun Pin v. Greenwood⁽⁴⁾. In 1970 almost exactly the same words were used in Section 7(2)(a) of the Rent Increases (Donestic Premises) Control Ordinance, which has since become the section now under discussion. Wong's case followed here in 1971. I cannot help feeling that if in 1980 the legislature had decided to alleviate the effect of those decisions, it would have chosen to do so in clear and express words. I conclude therefore that it did not so intend and for my part I would allow the appeal.

Leonard. V. P. :

14. I agree and have nothing to add.

Zimmern, J. A.

15. I also agree.

(1) [1948] 2 K. B. 82

(2) [1947] 1 K. B. 186

(3) i id 193

(4) [1964] District Court Law Reports page 246

(5) [1971] District Court Law Reports at 46

(6) [1950] 2 All E. R. 1209

(7) Baker v. Lewis at page 193

(8) [1980] A. C. 1

(9) [1979] H. K. L. R. 214 [1979] 2 All E. R. 1146

Representation:

Y. C. Mok (Charles Russell & Co.) for the Appellant/Defendant

Geoffrey MA (Lo & Lo) for the Respondents/Plaintiffs