Cheung Tao v. Leung Po Yee

DCCJ004236/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4236 OF 1981

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Coram: Judge D'Almada Remedios in Chambers

Date of Judgment: 10th July, 1981

APPLICATION TO STRIKE OUT PARTICULARS OF CLAIM

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DECISION

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1. The application by the Defendant now before me is to strike out the Plaintiff's claim because no reasonable cause of action is disclosed or alternatively, that the claim is frivolous, vexations or an abuse of the process of the court.

2. The Plaintiff's claim is for possession of premises for his own occupation. In the Particulars of Claim the Plaintiff pleads that the Defendant is his tenant held under a tenancy agreement which will expire on the 31st of August, 1981. Before that date was at hand the Plaintiff in early June, 1981 issued a writ for the eviction of the Defendant. So the Defendant says that at the date of issue of the writ the Plaintiff had no cause of action because, on the Plaintiff's own showing, he was contractually bound to give to the Defendant quiet and undisturbed possession until the 31st of August, 1981.

3. There is certainly a lot to be said for this argument and I fully recognise the force of it.

4. But in an application of this nature, what I must bear in mind is the cardinal rule that I must be satisfied - I would say beyond the shadow of doubt - that the Plaintiff's claim at the date of the writ was so obviously unsustainable and so incontestably bad that it would be vexations to allow the action to continue.

5. Now, can I say that the Plaintiff's claim is so clearly unarguable and untenable that I have no recourse but to strike it out? Regretfully, I do not think I can. What I have to contend with are the difficulties involved having regard to the provisions of part II of the Landlord and Tenant (Consolidation) Ordinance for which I feel that I need go no further than to refer to that part of the judgment of the learned Justice of Appeal, Sir Alan Huggins in Civil Appeal No. 152 of 1980 when he said (albeit by way of obiter):

"It was argued that if an order for possession may be made under Section 53(2) while the contractual tenancy is still in force in justice might be done to a tenant with a fixed term which had not yet expired if the landlord were to claim possession under para. (c). While recognising that such a case might present difficulty, I think it would not be insuperable."

6. In the circumstances, I am unable to grant the order which the Defendant seeks as the Plaintiff's case is conceivably arguable.

7. I want to make it clear, however, that my refusal to grant the order is based solely as the reason I have given and I express no opinion one way on the other as to whether, on the date of issue of the writ, the Plaintiff had a valid cause of action. I order that costs be in the cause.

Representation:

Mr. TSE (K.B. Chau & Co.) for Plaintiff.

Mr. AU (Johnson Stokes & Master) for Defendant.