Leung Lai-ping v. Wen Sau-chung and Another

DCCJ002214/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2214 OF 3980

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Coram: Judge Jones

Date of Judgement: 10 November 1980

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JUDGEMENT

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1. This is an action for possession of 5 Min Fat Street, 2nd floor, Flat B under Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance that the premises are reasonably required by the plaintiff as a residence for herself. It is agreed that the plaintiff is the registered owner of the premises.

2. The plaintiff is a part time amah. She lives with her 18 year old niece in a cubicle at 13 Luen Hing Street, lst floor, Happy Valley. Until her niece came to live with her two years ago from Mainland China the plaintiff shared a cubicle with her aunt at 4 Catchilk Street, 2nd floor, Western. The aunt who relies upon the plaintiff for her support still lives at this address on her own.

3. The plaintiff seeks an order for possession of the suit premises for herself, her niece and aunt.

4. The suit premises were let to the defendants by a tenancy agreement dated the 7th December 1976 for a period of three years which expired on the 9th November 1979. Since that time the defendants have held over from month ...(illegible).

5. The suit premises which has an area of about 300 square feet is divided into two cubicles, one sitting room, kitchen and lavatory. One cubicle is occupied by the first defendant a single man aged 28, his father aged 63, a brother aged 25 and a sister aged 22. The second cubicle is occupied by the second defendant a single man aged 26, his grandmother aged 90 and his mother aged 60.

6. The plaintiff purchased the suit premises eleven years ago with vacant possession. However, she did not occupy the premises herself because her income was insufficient to pay the mortgage instalments. Consequently the premises have been let. The full amount of the purchase price has now been paid.

7. It is clear that when considering whether the plaintiff reasonably requires possession for her own use, the situation of the niece, and the aunt may be taken into account. The plaintiff is aged 51, the niece 18, and the aunt 70.

8. The two cubicles occupied by the plaintiff and her aunt do not provide satisfactory accommodation whilst it is in their best interests that they should all live together. Upon the evidence I am quite satisfied that the plaintiff has established that she reasonably requires possession of the suit premises for her own occupation.

9. The burden therefore shifts to the defendants to show that in all the circumstances of the case it would manifestly not be just and equitable to make an order.

10. The phrase "manifestly not be just and equitable" was considared by Judge de Basto in Lusher v. Hillard (1) and approved by the Court of Appeal Chow Hing v. YUEN Chi-hung & WONG Pak-ping (2)

11. In his judgement Judge de Basto said:

"In my view, the proviso means that a tenant must satisfy a Court that, having regard to all the circumstances of the case, there are clear, cogent and impelling reasons why the making of an order for possession would result in injustice. Or, to put it in another way, if an order for possession were made, one would expect a Court of Equity, apprised of all the circumstances of the case, to, so to speak, throw up its hands in dismay and exclaims: "That cannot be right"

For the words Court of Equity the Court of Appeal preferred to substitute "an ordinary person".

12. In the course of his judgement Roberts C.J. said:

"We do not think that it is desirable to attempt to scrutinise each constituent part of the phrase. We consider that what District Judges who are likely to be faced frequently with the task of the interpreting this section, require is as simple a test as possible. We suggest that the question to be asked is whether it would be thoroughly unjust to make the order."

13. The plaintiff earns $900 per month out of which she pays $250 per month as rent for her cubicle, and $300 to support her aunt who is infirm and is unable to work. The rent for the suit premises is $750 per month. The niece earns $1000 per month out of which sum she makes remittances each month to her parents in China and a monthly contribution to the plaintiff.

14. The first defendant earns $1200 per month as a motor vehicle sprayer, his brother earns between $700-$800 per month as an apprentice, and his sister $600 per month. The first defendant's father is not working.

15. The second defendant and his mother operate a newspaper stall which is near to the suit premises. The second defendant's family have carried on the business for over forty years. The net income from the stall amounts to $1500 per month.

16. Neither the plaintiff nor the defendants have any capital or alternative accommodation available. Upon the evidence the plaintiff is marginally better off financially than the defendants. However, there is a total of seven persons living at the suit premises whereas the plaintiff claims possession for three people.

17. Having regard to the evidence which was largely not in dispute I consider the defendants have satisfied the onus upon the balance of probabilities that it would be thoroughly unjust in all the circumstances to make an order for possession.

18. The action is therefore dismissed with costs to the defendants on the upper scale.

Representation: