Law Hau-man v. Ho Chun-chiu

DCCJ000263/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 263 OF 1980

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 3rd September, 1980.

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JUDGMENT

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1. This is an action for possession on the ground that the defendant tenant has caused unnecessary inconvenience to the plaintiff landlord inasmuch as he persistently failed to pay rent as and when it fell due and continued to do so after a warning in writing had been served on him by the plaintiff.

2. I say at once that I am satisfied that the defendant did persistently fail to pay rent as and when it fell due and continued to do so after the letters hereinafter referred to had been served on him by the plaintiff, and that by doing so he caused unnecessary inconvenience to the plaintiff. I will give written reasons for those findings if duly required under subsection (1) of section 60 of the District Court Ordinance.

3. In my judgment the outcome of this case depends upon whether any of the letters in question amounted to a warning for the purposes of the proviso to paragraph (d) of subsection (2) of section 53 of the Landlord and Tenant (Consolidation) Ordinance.

4. Section 53, so far as relevant, reads as follows:-

(2A) For the purpose of subsection (2)(d), a tenant or sub-tenant who persistently fails to pay rent as and when it falls due may be regarded as causing unnecessary inconvenience to the landlord or principal tenant, as the case may be."

5. The letters which I am satisfied were served on the defendant by the plaintiff read as follows:

Your rental for your premises (excluding maintenance fees) were paid up to August this year only and as of today, the following is still out-standing:

The above totalled HK$4,789.00. Please make immediate payment to myself or to Management Officer Mr. Chan in the aforesaid sum.

We are instructed by your Landlord, Mr. LAW Hau-man, to demand payment from you of the sum of $6,200.00 being arrears of rents and management charges in respect of the above premises due and owing by you to him which said sum is made up as follows:-

Unless the said sum of $6,200.00 is paid to our client or to us on his behalf within seven days from the date hereof such legal steps as our clients may be advised will be taken against you without further notice.

We are instructed by your Landlord, Mr. LAW Hau-man, to demand payment from you of the sum of $7,650.00 being arrears of rents and management charges in respect of the above premises due and owing by you to him which said sum is made up as follows:-

Unless the said sum of $7,650.00 is paid to our client or to us on his behalf within seven days from the date hereof such legal steps as our clients may be advised will be taken against you without further notice.

6. Counsel for the plaintiff submits that each and every one of those letters amounted to a warning in writing for the purposes of the provise. Counsel for the defendant submits that none of them did. He stresses that the object of Part II of the Ordinance is the protection of domestic tenants.

7. The provise does not spell out what the tenant or sub-tenant is to be warned about. However, it seems to me that its raison d'etre can only be to give a measure of protection against eviction to tenants and sub-tenants who cause unnecessary annoyance, inconvenience or disturbance (whether by persistently failing to pay rent as and when it falls due or otherwise) who might be unaware that their conduct places them in jeopardy of eviction, and to give them an opportunity of mending their ways before an order for possession may be made against them upon that account.

8. I do not think that the letter exhibit P7 amounts to a warning of any kind about anything or that the letters exhibits P9-11 amount to any more than warnings that unspecified legal action would be taken against the defendant if he did not pay the arrears of rent and management charges within 7 days. In my view none of the letters exhibits P9-11 amounts to a warning for the purposes of the proviso. In my judgment a warning for those purposes is insufficient unless it warns in terms that if the tenant or sub-tenant continues to cause unnecessary annoyance, inconvenience or disturbance by persistently failing to pay rent as and when it falls due or as the case may be steps will be taken to recover possession on that ground under the Ordinance. It follows, therefore, that while I have every sympathy with the plaintiff and none with the defendant in this case the plaintiff fails. The action is dismissed with costs to be taxed on the upper scale.

Dated this 3rd day of September, 1980.

Representation: