Lam Cheung Kam v. Cheung Chun Tak

CACV000093/1981

Section 52 (1) (b) Landlord & Tenant (Consolidation) Ordinance whether test to be adopted to determine if it an order would be unjust and inequitable properly applied.

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

Date of Judgment: 21st December, 1981.

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JUDGMENT

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Leonard, V-P:

1. This is another case arising on the application of the proviso to Section 52(1)(b) of the Landlord and Tenant (Consolidation) Ordinance. The trial judge was satisfied that the landlord had a present need for the premises in question and in the course of his judgment stated correctly the test which he should apply as to the proviso and the onus placed on the tenant by it when he said "I must now consider whether the defendant, who also gave evidence, has established on the balance of probabilities that in all the circumstances it would be manifestly unjust and inequitable to make an order; or as it was put in a recent decision of the Court of Appeal whether an ordinary person would consider that in the circumstances it would be thoroughly unjust".

I think that Mr. Faulkner is correct when he says that the correct approach of this court must therefore be not to upset the trial judge unless this court is satisfied that the conclusion as which he arrived was manifestly wrong. Unfortunately I have arrived at that conclusion. The trial judge having stated the correct test appears to have strayed away from it; thus when considering the problem arising from the offer of alternative accommodation made to defendant he says that he should not regard that matter as "weighing heavily against the defendant in the balancing of the scales". When speaking about these cases in general he observed "It is never easy to decide these cases because one is well aware of the hardship caused to both parties because of financial restrictions the availability of income for renting and because of the present conditions with regard to housing in Hong Kong." An other matter which appears to have weighed heavily with him was a lack of candour on the part of the plaintiff as to his financial means. I do not consider that such a lack of candour, although a circumstance which must be taken into consideration, is one which would render an order for possession "thoroughly unjust". Relative hardship again may be one factor among many which would render an order thoroughly unjust but it alone can seldom be. It certainly cannot be sufficient in this particular case even when taken together with a lack of candour on the part of the plaintiff to make it thoroughly unjust to make an order in his favour. The plaintiff has a large family, he seeks to house that family in his own premises. There is no evidence on the record of any endeavour by the defendant to find alternative accommodation. Indeed he refused an offer of alternative accommodation. I cannot see that on the evidence the defendant could reasonably be said to have established that is would be manifestly unjust to make an order. I would allow the appeal.

Cons, J.A. :

2. I would also allow the appeal. It seems to me there are two matters which the Judge has taken into consideration, but ought not to have done, when coming to his conclusion that it would be manifestly not just and equitable to make the order for possession.

3. The first was what he took to be delay in issuing the summons. We do not know what caused the delay and we understand from Counsel that the question was not raised with the landlord when he gave his evidence. Without knowing the reason for the delay I do not see how it can possibly tell against the landlord or, whatever the reason, cause injustice to the tenant by giving him several months' certainty of tenure whatever the eventual outcome.

4. The second matter was the failure of the landlord to move in to the premises when he first purchased them in 1977. Failure to take advantage of a previous opportunity is something that is often canvassed in these cases. I hesitate to say that it can never be "one of all the circumstances of the case" for one cannot possibly conceive all the situations that might arise. But it must be a rare case when it will carry substantial weight. In the present the landlord gave his reasons, which the Judge said he appreciated.

5. In addition, it seems to me that with every respect to the learned Judge he has fallen into the error to which this court referred in LAM Chuk-ying v. CHAN Kwok-kwan⁽¹⁾, where my Lord the Vice President spoke of judgments which, despite the introduction of the new test of manifestly not just and equitable constantly harked back to the old and abandoned test of greater hardship.

6. It was in Chow Wing v. Yuen Chi Hung⁽²⁾ that the question of how the new test was to be interpreted first came before this court. We adopted, with slight modification, the interpretation suggested by His Honour Judge de Basto, whether one would expect an ordinary person, apprised of all the circumstances of the case, to, so to speak, throw up his hands in dismay and exclaim: "That cannot be right".

7. We also suggested a simplified alternative, whether in all the circumstances, it would be thoroughly unjust; and it is to this simplified alternative only that judges almost invariably refer. In so doing they appear to lose sight of the true criterion we hoped to emphasise by the adoption of the more picturesque approach. For my part I cannot help feeling that the chances of error would be greatly reduced if judges were at all times to keep that picture firmly in their minds.

Zimmern, J.A. :

8. I would also allow the appeal and there is nothing I wish to add.

Representation:

Mr. B. D'Almada (Lau & Co.) for Appellant

Mr. R. Fanlkne (D.L.A.) assigned for Respondent

(1) C.A. No. 97 of 1981

(2) [1980] H.K.L.R. 788