Leung Shing and Another v. Hung Sun

DCCJ004116/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT WICTORIA

CIVIL JURISDICTION

ACTION NO. 4116 OF 1981

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Coram: H.H. Judge Bokhary in Court

Date of Judgment: 26th August, 1981

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JUDGMENT

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1. This is an application for summary judgment under rule 27(1)(b) of the District Court Civil Procedure (General) Rules on the ground of failure to disclose a reasonable defence. The claim itself is for possession of domestic premises under what is commonly called 'the reasonable requirement provision' contained in section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap.7. Two matters of general importance arise. The first is the correct approach to such applications for summary judgment. The second is the scope of what is commonly called 'the just and equitable provision' contained in the proviso to section 53(2)(b). They arise in this way.

2. The two plaintiffs are husband and wife. They are the registered owners of a flat known as Flat B on the 4th floor of Sui Cheong Building at 41 Sharp Street East, Hong Kong. The defendant is their tenant. In May this year, they commenced proceedings to recover possession of the flat under section 53(2)(b) on the ground that they reasonably require the same for occupation as a residence for themselves and 'members of their family' (which members, on the undisputed evidence before me, consists of their 6 year old son and one year old daughter).

3. The defendant has filed a defence of extreme brevity. It does not make any denial of any of the averments in the Particulars of Claim, which is in a familiar form. It says no more than this: -

'I dispute the plaintiff's claim for the following reasons: -

1.

My low income does not allow me and my family to take up other premises which are too expensive'.

Following the filing of this defence, the plaintiffs took out this application for summary judgment. When it first came before me on the 19th of this month, the defendant said that he did not understand English and that he had not made any attempt to have the documents served on him explained to him. This was because, he said, it was difficult to get anybody to explain them. I raised the possibility of an adjournment. The defendant indicated that he wanted an adjournment even if he had to bear the costs thrown away. Despite objection by Mr. Kwan who appears for the plaintiffs, I granted a week's adjournment (awarding the plaintiffs the costs thrown away).

The onus on a plaintiff seeking summary judgment under rule 27 in this Court is, in my judgment, every bit as heavy as the onus on a plaintiff seeking summary judgment under Order 14 in the High Court. It is to show that there is no reasonable doubt that he is entitled to judgment: see Jones v. Stone [1894] A.C. 122.

On the pleadings, there is no challenge to the applicability of Part II of Cap.7 or to the existence of a reasonable requirement falling within section 53(2)(b). Mr. Kwan argues that I must not look beyond the pleadings. I disagree. The scheme within which rule 27(1)(b) falls is an informal one dealing with, inter alia, the framing of issues; and, furthermore, it expressly contemplates litigants in person. As Lord Lane said in Bank of America v. Chai Yen [1980] 1 W.L.R. 350 at p.353D: 'The essence of any rule of procedure must be fairness ...'

In my judgment, it would not be fair to ignore what the defendant said in the course of argument. So I take that into account. Having done that, however, I find that nothing he so said constitutes any or any viable challenge to the applicability of Part II or to the existence of a reasonable requirement falling within section 53(2)(b).

4. This leaves the just and equitable provision. As I have said, I reject Mr. Kwan's argument that I must not look beyond the pleadings.

5. The scope of that provision has been the subject of a number of decisions in this Court. On the present state of those decisions it is in my view arguable (I say no more than that) that greater hardship alone, if so extreme as to be ruinous, can provide a defence under the just and equitable provision.

6. Has anything which the defendant has pleaded or said in the course of argument raised a reasonable prospect of such hardship? I have gone to great lengths to assist him to present his case. At times, I came perilously close to entering the arena on his behalf. Throughout, Mr. Kwan appeared pained but, I must say, remained patient. Despite all this assistance, all that has emerged is that he earns $1,300 per month, his wife earns $1,500 per month, and their two children, both boys aged 16 and 17 respectively work irregularly. The present rent is $1,200 per month. At one stage, the defendant said that he had invited the plaintiffs to raise the rent. None of this contains even a hint of the sort of hardship which might arguably provide a defence under the just and equitable provision or even of merely greater hardship. The defendant has not, despite my assistance, brought forward anything relevant to the just and equitable provision on any other basis.