Joseph Marcel Archibald John Dawson v. United States Lines Incorporated
Read the full judgment text of DCCJ 1260/1980 on BabelCite. This District Court judgment.
1. In this action the plaintiff sought an order for possession of residential premises known as Flat 2, 26B Shouson Hill Road, together with other relief.
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DCCJ001260/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1260 OF 1980 -----------------
----------------- Coram: H.H. Judge Cruden in Court Date of Judgment: 12th June, 1980. ----------------- JUDGMENT ----------------- 1. In this action the plaintiff sought an order for possession of residential premises known as Flat 2, 26B Shouson Hill Road, together with other relief. 2. It was established before me that Flat 2 consituted residential premises in respect of which a premit to occupy had been issued by the Building Authority on the 8th day of October 1963. Part II of the Landlord & Tenant (Consolidation) Ordinance, Cap. 7 therefore applied. The plaintiff had purchased the premises on the 26th day of October, 1963. He had personally resided in Flat 2 from 1970 to 1976. The Plaintiff had leased the premises to the defendant company for a term of 23 months commencing on the 1st day of February 1977 at a monthly rental of $8,250. The lease expired by effluxion of time on the 31st day of December 1978 since when the defendant has been holding over as a monthly tenant. 3. The plaintiff claimed possession of the premises pursuant to Section 53(2)(b) of the Landlord & Tenant (Consolidation) Ordinance on the ground that the premises were required "for occupation as a residence for himself and/or his two daughters over 18 years of age". 4. The defendant put the plaintiff to strict proof. The defendant also pleaded that if the plaintiff were entitled to an order for possession that possession should not be given until the 31st day of October, 1980. This was the date on which a prior notice given by the plaintiff's previous solicitors would expire. The plaintiff conceded that, if the order for possession sought was granted, then he could not require vacant possession to be given until the 31st day of October, 1980. 5. Turning to Part II of the Ordinance the relevant portion of Section 53(2)(b) now provide that:
6. The defendant intimated that it considered that as it was a substantial corporation it could not, as a matter of fact, invoke the proviso to Clause (b). This is the proviso which, notwithstanding that a plaintiff landlord has established that the premises are reasonably required by him or his statutory prescribed relatives, enables a tenant to satisfy the Court that it would nevertheless manifestly not be just or equitable to make such an order in favour of the landlord. 7. So the narrow legal issue before me was whether the premises were reasonably required by the plaintiff, as landlord, for occupation as a residence. I did not have to consider the just and equitable provisions set out in the proviso. At this stage I would first advert, to what I infer from the pleadings, is a misunderstanding of the provisions of Section 53 as far as a landlord and the statutory relatives therein mentioned is concerned. The Section clearly provides disjunctively that a landlord has the statutory right to possession if the premises are reasonably required by the landlord as a residence for:-
8. If the premises are reasonably required by any of the relatives (b) to (e) then it is not, as a matter of law, obligatory for the landlord personally to require the premises as well for his own personal residence. The empowering provisions of the Section are therefore wider than may at first appear. Even if the landlord has quite adequate premises for his own use, if any, statutory relative has no such premises and if possession is reasonably required for that relative, then an order may make subject, of course, to any matters being raised by a tenant under the proviso. 9. In the instant case the landlord personally wishes to reside in the premises. If he does obtain possession he states that his two daughters, both over the age of 18, will reside with him. In that event the daughters would not reside at the suit premises independently but as part of the plaintiff's household. I am not therefore concerned with the separate statutory ground which enables possession to be granted for the purpose of daughters to reside at the premises. The position of the daughters, however, remains very relevant. That relevance is that in considering the adequacy of the suit premises - and any other premises owned by the plaintiff - I am entitled to take the fact that his two daughters will be living with him into account in considering his requirements. This was the position on the evidence adduced before me. Paragraph 6 of the plaintiff's statement of claim which provides:-
is therefore otiose. 10. The plaintiff in fact owns three residential premises in Hong Kong. The first of these comprises the suit premises. The second, is Flat 1, 26B Shouson Hill, which adjoins the suit premises. When the plaintiff purchased the residential premises known as 26B Shouson Hill in 1963 they comprised a two-story residential property. In 1976 the plaintiff had this property divided into 2 flats. The upper floor was converted into self-contained residential premises now known as Flat 1 comprising 2 bedrooms, sitting room, dinning room, 2 bathrooms and a small rooftop garden. It has no amah's quarters. The lower floor flat, known as Flat 2, is the suit premises. It includes 4 bedrooms, sitting room, dining room, 3 bathrooms, amah's quarters and the ground floor gardens. The third residential property owned by the plaintiff, is Flat A, 5th floor, 69 Wong Nei Chong Road, Happy Valley. This flat was purchased by the plaintiff in 1972 for the mother of his two daughters. The property was provided by the plaintiff to enable her to reside there together with her son and an older daughter of whom the plaintiff is not the father. This flat is under 1000 square feet in area and includes 3 bedrooms. One is at present occupied by Miss Teresa Wong aged 25 years who gave evidence for the plaintiff and who is a half-sister of the plaintiff's two daughters. Her mother was also stated to live at these premises although at present it appears she may be absent. 11. Four years ago the plaintiff left Hong Kong and went to live in Canada with his two daughters referred to in the statement of claim, namely Julie Irene who was born on 25.2.60 and Lena Annabelle Lydia who was born on 10.9.61. The plaintiff stated that he took his two daughters to Canada to further their education and himself lived in Canada during those 4 years. 12. During the latter part of the lease of the suit premises to the defendant it has been occupied by one of its officers, a Mr. Morehouse. The plaintiff had discussions with Mr. Morehouse during periodical visits to Hong Kong and also corresponded with him. From these discussions and this correspondence there was some evidence of the possible sale of the suit premises. The plaintiff was cross-examined in respect of a conversation he had with Mr. Morehouse in respect of selling the suit premises and this subject was also referred to in correspondence which was produced. I accept the plaintiff's evidence that when he refused to grant an extension of the then existing lease, Mr. Morehouse raised the possibility of buying the premises. I am satisfied that the plaintiff then indicated that even if he sold the suit premises in the future he would first want to return to Hong Kong and live in the suit premises before he considered doing so. Miss Teresa Wong was able to give evidence corroborating the plaintiff's evidence which I accept. I am satisfied that the plaintiff genuinely seeks possession for the purpose of personally residing in the premises. I have considered, but on the evidence reject, the possibility that he is using that ground as a sham to obtain possession in order thereafter to sell the suit premises with vacant possession to a third party. The plaintiff understood that when he returned to Hong Kong late 1979 he would be given vacant possession of the premises. He returned in December 1979 when the defendant refused to yield up vacant possession. The notice mentioned earlier was then served on the defendant and subsequently these proceedings were issued. 13. The plaintiff states that as he could not get vacant possession he has been obliged to live at the Happy Valley premises. However, he states that when those premises were purchased it was never intended he would live there but they were to be the permanent rent free home for the mother of his two daughter and her prior children already mentioned. He states that they are unsuitable on grounds of size alone for himself and his two daughters to reside there addition to the present occupants. For similar reasons, he states that the upper floor premises at Shouson Hill, being Flat 1, are also unsuitable for his purposes. They are much smaller than the suit premises; his daughters would have to share a bedroom; there are no amah's quarters; there is no ground floor garden. He states that he is dependent upon an amah and that he has continued to retain the services of the amah he employed prior to his departure for Canada 4 years ago. At present she works part-time at Shouson Hill and part-time at the Happy Valley premises. 14. The plaintiff states that he owns no property overseas; that apart from the 4 years he has just spent in Canada he has lived in Hong Kong since 1959; that he regards Hong Kong as his home. I accept these allegations on the part of the plaintiff and find that henceforth he proposes to live in Hong Kong permanently. 15. The plaintiff stated that when he was unable to obtain possession of the suit premises he allowed the tenant of the upper flat, Flat 2, to remain in possession subject to vacating on possession of the suit premises being obtained. The plaintiff states that both flats are let partly furnished and that if he obtained possession of the suit premises he would move his furniture in the upper flat down to the suit premises. He states that he would never live in the upper flat as it is inadequate for his requirements. 16. It was put to the plaintiff by Counsel for the defendant that the upper flat was reasonably suitable for his requirements and doubt was cast on the probability of the plaintiff's two daughters living with the plaintiff. In any event, it was submitted by the defendant, they were at present not in Hong Kong. As they are not at present in Hong Kong the defendant further submitted it was not proper for them to be taken into consideration for Section 53 provides a remedy for a landlord only where the premises "are reasonably required by the landlord." It was submitted that the use of the word "are" in the Section means that the Court is restricted to looking at actual present circumstances and not at future possibilities. The defendant submits that the plaintiff must prove that the suit premises are at the date of the hearing reasonably required by him and not merely that they may be in the future. I accept that I must look at existing circumstances. However, whether it is probable that the daughters will return and, if so, live with the plaintiff is a separate issue. Before ruling on that issue I will turn to consider the actual position of the daughters. 17. Julie is now 20 years of age. Lena will be 19 next September. They were both born in Hong Kong. Four years ago the plaintiff left Hong Kong with them to go to Canada for the purpose of furthering their education. He stayed in Canada during those 4 years. When the plaintiff returned to Hong Kong last year he was accompanied by Lena who remained here until April 1980 when she went to London to commence a Vidal Sassoon hairdressing course when will finish in January 1981. The plaintiff states that Lena will then return to Hong Kong and live with him. The elder daughter, Julie, is at present undergoing an educational course in navigation and seamanship on a brigantine which is in the course of a 12 months world cruise. The plaintiff states that this cruise will end in January 1981 when Julie too, will return to Hong Kong and live with her father. 18. I accept that both daughters are currently away from Hong Kong. I further recognise that the plaintiff's assertion that next year both will return to Hong Kong and live with him is, at best, a statement of intent. However, I do accept that he honestly believes that they will then return to Hong Kong and he is not only willing but anxious, as their father, to provide a home for them at his own residence. I accept that there is no guarantee that they will return to Hong Kong. But I find that it is more probable than not, that they will return and, at least for a time, live with their father if his then residential premises are adequate for that purporse. 19. To what extent am I entitled to take that probability into account? I have already held that under Section 53 the factual basis of the plaintiff's claim is that the premises are reasonably required for the plaintiff's personal residence. I confirm that the plaintiff is not requiring possession so to enable his daughters to reside in the suit premises by themselves. In considering the plaintiff's requirements the Court must look at the overall position. To do so it is clearly proper to take into account those members of his family who will be living with him. I am entitled to take into consideration his total household. I am well satisfied that the plaintiff's family who would live with him if adequate premises could be found, would comprise himself and his two daughters. Further, I am similarly satisfied that the plaintiff would normally employ a full-time live-in amah. So his household comprises 4 persons. Does the absence of the plaintiff's daughters overseas prohibit me from taking them into account? I am satisfied that it does not. I am satisfied that:
20. As to whether the suit premises "are" at this moment required by the plaintiff I am satisfied that he does presently require them to live in. I am further satisfied that as part of his present requirements I am entitled to take into account that he is the father of the two unmarried daughters aged 18 and 20 who have no other home than the premises their father may be able to provide. Notwithstanding that they are not in Hong Kong at the date of this hearing and notwithstanding that they will not be returning until next year, I am satisfied that I am entitled to take their status, as the plaintiff's daughters who will be living with him, into account in considering his present overall requirements. Equally I recognise that it would be improper to give weight to future possibilities which may be remote. 21. But that is not the position here. The probable return of the plaintiff's daughters next year is a present reality. The fact that on their return they would rely on their father to provide them with accomodation is equally more probable than not. His willingness to do so was emphatically and I find honestly declared in his evidence before the Court. That evidence gains further strength from the record of his conduct in caring for his daughters in the past and for providing for their further education and training at present. 22. When I turn to consider the provisions of Section 53 I am satisfied that to adopt the defendant's interpretation would not merely be to interpret Section 53 narrowly but to misinterpret the Section. Section 53 itself, it may be noted, recognises the requirements of daughters over 18 as a separate ground for possession quite independently of the actual residential needs of their father. If the daughters have that separate statutory status when living independently of their father, then the position of daughters living with their father and forming part of his household, most equally be, able to be taken into account in assessing such a father's reasonable residential requirements. 23. I accept that the use of the word "are" means that the Court must look at the plaintiff's existing circumstances. One of those existing circumstances is that the plaintiff has two dependant daughters who are temporarily absent from Hong Kong but who will early in 1981 return Hong Kong. I have accepted the father's evidence that on their return they will reside with him. In considering the plaintiff's present position provision of accomodation for his two daughters in his own home, when they shortly return to Hong Kong, is an existing reality. I am entitled to take that reality into account. I do so. I also do so against the background factor - which is common ground between the parties - that even if the plaintiff suceeds in this action vacant possession would not be yielded up by the defendant until the 31st day of October 1980. In that event that would mean that the plaintiff would obtain possession only a few months before the expected return of his daughters early in 1981. 24. To interpret the word "are" as restrictively as the defendant urges would clearly be to miscontrue the word in relation to its context. As well it would require the Court to disregard the statutory general principle of interpretation set out in Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 which enshrines the common law principle enunciated by Lord Coke in Heydon's Case (1584) 3 Rep. 7b. For these reasons I reject the defendant's submission that I should ignore the position of the daughters in assessing the plaintiff's present requirements. 25. I find that the plaintiff reasonably requires residential premises adequate to provide accommodation for himself, his two daughters and his amah. 26. Finally, I turn to consider whether the plaintiff's other two flats are adequate to provide such accommodation. Flat 1, the upper flat of Shouson Hill, has only two bedrooms and no amah's quarters. I am satisfied that it is inadequate. As far as the Happy Valley flat is concerned, the plaintiff's evidence was mininal in so far as any obligation he may have to provide those premises for the mother of his daughters. However, this flat has only 3 bedrooms and is too small to further accomodate the plaintiff, his two daughters and his amah. On the other hand, the suit premises are clearly adequate. There are 4 bedrooms in those premises together with amah's quarters. The suit premises would therefore provide a separate bedroom for the plaintiff and his daughters while there would remain one guest bedroom. The amah's quarters would enable his amah to reside on the premises which was his former custom and his present wish. I hold that his wishes to provide quarters at his home for his amah are reasonable. 27. When I look at the realities of the situation before me, in accordance with the findings I have made, I am satisfied, on the balance of probabilities, that the plaintiff has discharged the burden placed on him by Section 53 of establishing that the suit premises are reasonably required by him for occupation as a residence. 28. There will therefore be judgment for the plaintiff for possession of the premises, as prayed, namely on the 31st day of October, 1980. The plaintiff is also entitled to the costs of and occasioned by these proceedings on the upper scale, to be taxed, if not agreed. There will be liberty to apply in respect of any other consequential matters. 29. Dated this 12th day of June, 1980.
Representation: Mr. Stevenson of Stevenson, Low & Co. for plaintiff. Mr Jolly of Deacons for defendant. |