Lee Pui-leung v. Lin I-ching t/a Tai Tung Comprador

DCDT000640/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

DISTRAINT NO. 640 OF 1981

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Coram: A.L. Leathlean, District Judge

Date of Judgment: 18th June, 1981.

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JUDGMENT

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Judge Leathlean:

1. In this matter the plaintiff distrainor let the premises in question to the defendant distrainee for three years from March 1st, 1979. On May 19th, 1981, he made a declaration for distress for arrears of rent in respect of the period February 1st to May 31st, 1981, deposing that he was the registered owner. A warrant of distress duly issued and was executed. It transpires that the Crown resumed the land in question on February 14th, 1981, under the provisions of the Crown Lands Resumption Ordinance. The defendant distrainee applied for the discharge of the warrant of distress on the ground that the plaintiff distrainor had lost his right to distress on February 14th, 1981, when the land was resumed by the Crown, and that the distress was therefore unlawful.

2. Even though in the event I have not had to decide the matter as this, so far as I am aware, is the first occasion upon which such a situation has arisen before the courts here I am putting my views in writing.

3. Section 5 of the Crown Lands Resumption Ordinance provides as follows:

"5. On the expiration of 1 month, or any longer period authorized under sectior 4(3), the land, other than any land purchased by agreement under section 4A, shall revert to the Crown and all the rights of the owner, his assigns or representatives and of any other person in or over the land or any part thereof shall absolutely cease."

4. It is clear that at common law a landlord loses his right to distrain upon the determination of his own interest: Burns v. Richardson⁽¹⁾ and Hopcraft v. Keys⁽²⁾, which are also authority for the preposition that where the lessor is himself only a termor his tenant is not estopped from impugning his title once his term expires.

5. I can see no distinction in principle between the case of a termor landlord whose term expires and a landlord whose land is resumed by the Crown under the Crown Lands Resumption Ordinance: in both cases the landlord's title is extinguished. I would therefore have held that the plaintiff distrainor lost his right to distrain on February 14th, 1981, when his land was resumed by the Crown, and that the distress was consequently unlawful, even as regards the arrears of rent in respect of the period February 1st to February 13th, although, of course, it would be competent for the landlord to sue for the recovery of those arrears.

6. Dated this 18th day of June, 1981.

Representation:

(1) 128 E.R. 513

(2) 131 E.R. 744