Chan Chun Ying v. P. U. Melwant
Read the full judgment text of DCCJ 1348/1970 on BabelCite. This District Court judgment was delivered on 19 June 1970.
1. This is an action for the recovery of possession of the premises known as Block "A", 2nd floor, Victoria Court, Hing Fat Street. A Notice of Termination of Tenancy pursuant to Section 6(2)(a) of the Security of Tenure (Domestic Premises) Ordinance, 1970 was served on the defendant on 26th February, 1970. The defendant served a counter notice in accordance with Section 6(6) disputing the right of the plaintiff to possession on the ground that greater hardship would be caused by making an order
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DCCJ001348/1970 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1348 OF 1970 -----------------
----------------- Coram: N.B. Hooper, D.J. Date of Judgment: 19 June 1970 ----------------- JUDGMENT ----------------- 1. This is an action for the recovery of possession of the premises known as Block "A", 2nd floor, Victoria Court, Hing Fat Street. A Notice of Termination of Tenancy pursuant to Section 6(2)(a) of the Security of Tenure (Domestic Premises) Ordinance, 1970 was served on the defendant on 26th February, 1970. The defendant served a counter notice in accordance with Section 6(6) disputing the right of the plaintiff to possession on the ground that greater hardship would be caused by making an order for possession then by refusing to grant such order. The plaintiff therefore claims possession under Section 6(7) on the ground that she requires possession for use as a dwelling by herself and her husband. 2. Since the commencement of this action and before the hearing date the Security of Tenure (Domestic Premises) Ordinance has been repealed by the Rent Increases (Domestic Premises) Control Ordinance 1970 but the same provisions are incorporated therein. 3. Before an order for possession can be made the Court must have regard to the Provisos to Section 6(7) of the Security of Tenure (Domestic Premises) Ordinance (Now Section 7(2) of the new Ordinance). 4. This Proviso is in the following terms -
5. This proviso is substantially the same as the proviso to para.(h) of the 1st Schedule to the English Rent Act of 1933 where the Courts can grant possession on similar grounds, and also to the Proviso to Section 23 of our own Landlord and Tenant Ordinance Cap. 255. 6. There is an abundance of authority that the onus of proof of greater hardship lies on the tenant,
7. Under the English Legislation 'Reasonableness' is an essential ingredient in the landlord's claim for possession.
8. However the Security of Tenure (Domestic Premises) Ordinance and the new ordinance contain no such statutory requirement of a general nature, nor does Section 6(2) require that the landlord shall prove that the premises are reasonably required by himself etc. as does the Act of 1933 and Section 23 of Landlord & Tenant Ordinance. 9. It would appear that the landlord has an absolute right to possession whether required reasonably or not, as long as it is required for his use or the use of a prescribed member of his family, unless his possession would result in hardship for the tenant. The scales should be weighed with this in mind. 10. In determining 'greater hardship' the Court must have regard to all the circumstances, including the question whether other accommodation is available for the landlord and the tenant. 11. The plaintiff and her husband claim that the reason why the plaintiff purchased these premises was because her health was not good and the plaintiff had been advised to move away from their present home at 406E Des Voeux Road, West, 11th floor. Furthermore the plaintiff's husband suffered from rheumatism, and they both gave details as to why their present premises were unsuitable. The medical certificate she produced supports her evidence that for the last 5 years she has been suffering from chronic duodenal ulcer with migraine and habitual insomnia, which conditions are closely related to climatic changes, exertion and excitement, and noise should be avoided. Her husband's medical certificate indicated that during the last 3 years he has been suffering from repeated attacks of pain in various joints most frequently in the knees and feet, which condition is closely related to change of weather and during the attacks his severe pain causes difficulty in walking. 12. The reasons put forward as to why their present premises are unsuitable fall under three general heads -
13. It should be appreciated that the break down of the lift would lead to conditions which make the area unhealthy and that there would be considerable reluctance by occupiers or their staff to descend and ascend many floors for the purpose of walking dogs or removing garbage and lead to the noisiness in so far as the noisiness of the area was contributed to by the removal of garbage cans. 14. The plaintiff, it would appear, has put forward a formidable case showing hardship on medical grounds. 15. The defendant rests his case that he would suffer greater hardship on medical grounds, financial grounds, and domestic grounds. 16. He has produced a medical certificate indicating that he has been under the professional care of a psychiatrist Dr. R.D. Scriven for several years and has had intermittantly severe exogenous depressive states and has during the last three months relapsed, and will require further treatment for some months. He has produced another indicating that since February this year he has been under the care of Sir Albert Rodrigues and is suffering from High Blood Pressure, and yet another from the same practitioner dated 18th May 1970 indicating that the defendant's son has been having attention "for the last 2 months" for Pulmonary T.B., and will continue to need treatment and increased rest for at least the next 6-8 months. 17. From the domestic point of view the defendant requires the premises not only for himself and his wife but also for his son and daughter. 18. His financial position has been put before the Court indicating his income during the last few years. Neither his son or daughter contribute to the family income but are dependent upon him. He is unable to buy a flat and claims that he could not afford to pay rent in excess of an increase of 20% over and above his present rent of $850 per month exclusive of rates. 19. He has testified that he has suffered mental agony as a result of the notice he received from the plaintiff's solicitor dated 8th December 1969. This offered him a new tenancy as from the 1st March 1970 at a monthly rent of $2,000 per month (Exclusive of rates) with a tenancy deposit of $4,000. There was a condition that the offer was accepted on or before the 15th December 1969. 20. This letter Ex. D3 has to a considerable extent weakened the plaintiff's case, because on the face of it it would appear to be in direct conflict with the plaintiff's assertion that she required those premises for her own use. Furthermore there would appear to be a conflict between her evidence and that of her husband as to what instruction she gave. She herself denied that she instructed her solicitors to offer the defendant a new tenancy. "I don't know this, I left it to my husband.", and she agreed that "anything he did was on his own initiative", and was not on her instructions. Her intention was to evict the defendant. 21. However her husband testified "After the purchase, I received instructions from my wife that through Deacons, Solicitors, I should have the rent increased to $2,000." 22. He went on later "It wasn't what I wanted to do. I knew the flat was not worth a rent of $2,000. I was in urgent need of the premises for my wife's health and myself so there was need for tenant to move out." As the offer was not accepted he instructed the solicitors to inform the defendant to move out. It has been suggested that the purpose of this offer was to get the defendant to move out. However the plaintiff's husband said that if the offer had been accepted he would have had to think again. 23. This claim by the plaintiff and her husband that they purchased these premises for their own use is not supported by the letters from their solicitors. There was nothing in the letter Ex. D2 dated 6th December 1969 to indicate that the defendant would be required to vacate the premises. There was on the other hand every indication that the tenancy would continue. The letter Ex. D3 dated 8th December 1969 contained the offer of a new tenancy at $2,000 rent per month. On this offer being ignored instructions were given for notice to be given. It was only on 26th February 1970 that the plaintiff's need of the premises for her own use is to be found for the first time in any document i.e. Ex. D4. 24. It is true that the plaintiff's husband claimed that he went to the defendant and told him, but he states there was a language difficulty. The defendant denies that such notice was given to him verbally by the plaintiff's husband and says that he offered increase of rent which was not accepted by the plaintiff's husband. 25. It is therefore a case of one man's word against the other and the documentary evidence would seem to support the defendant. 26. It is difficult not to look upon the plaintiff and her husband as persons like many other landlords who were at that time in the latter part of last year demanding exorbitant rents in an attempt to make quick returns for their capital expenditure; persons whose conduct led to the passing of the present legislation giving security of tenure and controlling the increase of rents. 27. As between the evidence of the defendant and that of the plaintiff's husband I think the probability lies on the side of the defendant and that he was never told by the defendant's husband the reason why the plaintiff wanted the possession and that the two of them did have discussion on the rent but that the plaintiff's husband refused the offer of 12%. 28. I cannot escape the feeling that the description the plaintiff and her husband have given of the premises they now occupy is exaggerated. The failure of the lift to work would appear to be the main drawback in these premises, but it would appear that this is not something of a permanent nature, nor is it something over which the plaintiff has no control. The very fact that the plaintiff through her solicitors offered the defendant a new tenancy would appear to indicate that the need for change was not as urgent as she would have the Court believe and that the conditions, prevailing at these premies gave rise more to inconvenience than genuine 'hardship'. The plaintiff's condition has existed for some 5 years and her husband's for some 3 years. The fact that so little has been done to remedy their situation would tend to support that view. Furthermore when it was pointed out to the plaintiff under cross-examination that she had moved into the present premises within the last 5 years that is in 1966 she replied it was only when I moved in I found the lift was no good and there was the smell. However D.W.3 the tenant on the 9th floor said that when she moved in 3 years ago it was alright. Further she also said that she wished to move out of the premises but she has remained there for over 2 years. 29. I would agree with Mr. Wong that it is up to the defendant to prove that there is no other suitable accommodation. The defendant has stated that he has tried his best to look for any other flat but that he cannot get any other flat within his means, and that he is not in a position to purchase a flat. Again under cross-examination he stated that he could not get a flat of a similar type as it is only the higher rent flats that are available and that he read the advertisements in the newspapers and he knew the rent. Furthermore he does not own a car. 30. It is I think fair for me to consider this evidence in the light of the fact that it was the shortage of these types of premises which led to the huge increases in rent which were being demanded and which again led to this legislation. 31. Although it is not encumbent on the plaintiff to show that there was suitable alternative accommodation for the defendant to move into, she has given no evidence nor called any evidence to rebut the defendant's evidence that no similar accommodation was available. 32. In my view an order giving possession to the plaintiff would result in greater hardship to the defendant than a refusal to do so would to the plaintiff. In my view this has been proved on a balance of probability having regarded to the relative medical, domestic and financial positions of the parties and having regarded to the question as to whether there was suitable alternative accommodation for him and the plaintiff. 33. I therefore will not make an order for possession in this case. Costs to defendant under Scale IV.
19 JUN 1970 Representation: Mr. W.P. Wong (Deacons) for plaintiff. Mr. G.E.S. Stevenson (Brutton & Stewart) for defendant. |