S.D.S. Bokhary v. Michael Eric Bremner

CACV000087/1981

Landlord and Tenant Ordinance Section 53(2)(b) whether premises "reasonably required" by landlord. Suspicion of landlord's motives whether warranted.

IN THE COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 1981

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

Date of Judgment: 30th September, 1981.

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JUDGMENT

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Leonard, V-P. :

1. The appellant in this case sought possession, under Section 53(2)(b) of the Landlord and Tenant Ordinance, of premises known as ground floor, 5H Bowen Road, formerly let to the respondent at a monthly rent of $2,612. The premises were first occupied post-war and the appellant claimed that he reasonably required them for his own use. In his defence the respondent did not deny this allegation but put forward grounds suggesting that he would suffer grave hardship if the order sought were granted to the appellant.

2. It comes as some surprise, therefore, to find that the judgment concerns itself, almost in its entirety, with the question whether or not the appellant reasonably required the premises for his own use. At the outset of his judgment the trial judge points out that a landlord must prove a "genuine present need" something more than a desire and with that I would respectfully agree. The trial judge goes on in his judgment to quote from a decision made by him in an earlier case in which he dealt with the necessity of proving the bona fides of any such application. In the course of this he had said that he believed it to be "important for the court to be cognizant of the fact that considerations other than those stated in evidence may well apply". It may be true that some landlords are motivated by considerations other than those appearing in their evidence. That said, however, I can see no justification for approaching the evidence of a landlord with a suspicion that motives other than those of which he gives evidence and which are not suggested by his tenant have affected his decision to seek possession. In this case, having dealt with his circumstances the trial judge went on to set out the appellant's reasons as given in evidence for requiring possession. The suit premises are very considerably larger than the premises in which he is at present residing. They are closer to his office address. He would find it easier to reach his office walking from the suit premises than he would by car from the premises in which he has been living owing to the congested state of the roads.

3. The trial judge mentions these matters and the shortage of space in the present premises together with the medical need of the appellant to employ somebody having nursing knowledge as having been put forwards by the appellant as reasons for his requirement, but does not accept that he has a "present need". He says that he found his evidence of his intention at the date of the hearing "less than convincing" and also stigmatizes the appellant's denial that he was in his position to purchase a different premises as "less than convincing". He regards the latter as a collateral matter but "available for use in assessing credit" and finds that the appellant has failed to establish on the balance of probability that he reasonably requires the suit premises as a residence for himself. Although he had earlier mentioned them he does not dispose of or deal with the various matters I have mentioned which the plaintiff gave as his reasons.

4. It is important in cases brought under Section 53(2)(b) to bear in mind that what the plaintiff is necessarily doing is seeking possession of premises which he owns. For my part I would not regard it as unreasonable to require my own premises if they presented the advantages which the appellant says the premises in suit offer.

5. There was some indication that the plaintiff had changed his mind as to his reasons for requiring the premises. Thus he said that he had purchased them in order to live in them after he had retired but when he retired he did not seek immediately to live in them but continued by arrangement with the company with which he had been employed to occupy premises which he had occupied when he worked for them. When he had to move out of those he moved into premises owned by his son rather than seeking to live in his own premises. Later he indicated through his solicitors that he required the suit premises for occupation by his daughter. His daughter got married and decided to remain abroad shortly after this indication was given and a summons which he issued for recovery of possession on the basis that the premises were required for his daughter was discontinued and the present proceedings were issued in their place. However these changes in intention were fully understandable and it seems clear that at all relevant times the appellant required possession of the suit premises. It was the reason for the requirement that changed and not the requirement, hence it is somewhat startling to find the trial judge arriving at the conclusion that even at the date of trial the appellant had not formed the intention necessary for present requirement of the premises, and I must take it that by saying that the plaintiff had not entered into the "valley of decision" what the trial judge meant was that the appellant had not arrived at a settled intention that he required them. He took into account some relevant factors in arriving at this conclusion particularly that proceedings had been earlier commenced so the premises might be occupied by his daughter, but other factors influencing that finding were irrelevant to that consideration, in particular evidence relating to his ability to purchase another flat.

6. I consider that had the trial judge given full consideration to the factors which I have already mentioned as put forward by the appellant, namely the crowded nature and situation of his present premises when compared with the suit premises and the appellant's age and health, he must necessarily have come to the conclusion that the appellant reasonably required his own premises for his own residence.

7. The trial judge having decided that the appellant did not reasonably require the premises for his own residence did not go on to consider whether respondent had established that it would be clearly unjust to make an order for possession. He put forward before us a number of factors in an attempt to show this comparing his financial position with that of the respondent. He pointed out that his income is in the neighbourhood of 1/60th of that enjoyed by the appellant; that he would have difficulty in obtaining suitable alternative accommodation at a rent which he could afford; that he has financial commitments towards a lady with whom he is living and towards her children and asked us to hold that these indicate that it would manifestly not be just to make an order.

8. I am far from being persuaded that these considerations would cause an ordinary person to throw up his hands in horror or dismay at the notion that a tenant should, in these circumstances, be required to deliver up possession. The respondent's lease of these premises terminated in 1978. He has been occupying them on a temporary basis ever since. He said in the course of his evidence that his tenancy was extended until the spring of 1979 without any increase in rent, that he had made improvements of his choice, and that the appellant later indicated in phone calls that he would prefer to move into the premises himself to increasing the rent. His evidence was that he had made unsuccessful efforts "with a view to rental on purchase" by which I take him to have meant that he made efforts to purchase premises on some form of mortgage repayable by instalments. None of these factors, particularly having regard to the length of time which he has had to obtain alternative accommodation persuades me that it would be unjust to make an order. I would allow this appeal and order that the appellant to recover possession of the premises.

Cons, J.A. :

9. I would also allow the appeal, but as we are disagreeing with the judge below, it is right that I should give a short outline of my reasons.

10. As I read his judgment, he based his refusal to grant the order requested solely upon his conclusion that the landlord had not yet formed a sufficient intention to reside in the premises himself. I do not think his conclusion was in any way based upon the demeanour of the landlord in Court, or upon the general impression of his evidence firstly because the judgment makes no mention of those aspects and secondly because if it turned substantially on matters of that kind there would have been no need to reserve judgment.

11. The judge says that he would have found sufficient support of his conclusion in evidence that the landlord gave in relation to his financial position and his ability to purchase other premises, evidence which the judge found "less than convincing". The judge subjected that evidence to a searching analysis in his judgment, yet the matter was only slightly touched upon in cross-examination by the tenant, and certainly no opportunity was ever given to the landlord to deal with the judge's suppositions.

12. The judge would also have taken into account, if necessary, the fact that earlier the landlord's solicitor had written to the tenant demanding possession for the landlord's daughter and then issued a writ in which possession was said to be for both the landlord and his daughter. The present writ requires possession only for himself. Counsel relies upon one question and answer which appears on page 27 of the record which appears to imply that at one stage the landlord wanted to use both premises at the same time. I must confess that I find that exhcange difficult to understand as it is recorded, but apart perhaps from that I do not see anything sinister in these variations of intention, bearing in mind that since the matter was first broached the daughter has married and decided to continue to reside in the United Kingdom.

13. The premises were originally purchased by the landlord deliberately for when he might need them later on in his life. At that time he had in mind his retirement from the Wharf Company where he was employed. But when later retirement did come along the Wharf Company allowed him to take over the premises which previously they had leased on his behalf. When that became no longer possible the landlord and his wife moved into premises purchased by his son.

14. The landlord's wife has since died. He is an elderly person. He does not enjoy the best of health and says that he would like the premises in question because they will enable him to accommodate an English speaking housekeeper who has some knowledge of rudimentary first aid. That course is not available in his present premises because they are too small. For my part I see nothing in the evidence to indicate that his apparent decision to take now the premises which he purchased some time ago deliberately for his later life is not a genuine desire.

15. The tenant, who has appeared before us in person has, if I may say so without appearing to condescend, acquitted himself honourably in surroundings to which he cannot be accustomed. He has demolished many of the arguments put forward by counsel for the appellant. But he has not managed to get round the central issue, which is that the judge was misled by irrelevant matters in coming to his conclusion. I think the judge got off on the wrong foot when at the beginning of his judgment he quoted part of an earlier judgment of his own where he seems to impute an ulterior motive to any landlord who dares bring an application under Section 53(2)(b). Unfortunately he did not later give himself any opportunity to get back on to the correct course.

16. The question then is whether we should send this case back for retrial or deal with the matter ourselves. The learned Vice-President has taken the view that we can deal with the matter here. I agree with him. There seems to me to be only one suggestion that the landlord is unreasonable to require the premises for himself and that is that he may be wealthy enough to purchase other accommodation. In my view that does not necessarily make his desire unreasonable.

17. If the order is made there will undoubtedly be some hardship to the tenant, and to the lady with whom he lives. They will have to accept a lower standard of living. So will the children whom the tenant has, to some extent, taken under his wing. The question is whether that amounts to manifest injustice. The test to be applied was approved by this Court last year, "whether an ordinary person being apprised of all the circumstances of the case" - and I would perhaps add the words "and bearing in mind the general effect of this particular legislation" - "would throw up his hands in dismay". As I see the position in this case, he would not.

18. I would therefore set aside the judgment below and entered judgment for possession in favour of the appellant.

Zimmern, J.A. :

19. I agree and have nothing to add.

Representation:

Mr. Mills-Owens, Q.C. & Mr. R. Sujanani (F. Zimmern & Co.) for appellant

Respondent in person